[Federal Register: January 19, 2001 (Volume 66, Number 13)]
[Rules and Regulations]
[Page 6015-6064]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19ja01-23]
[[pp. 6015-6064]] Occupational Injury and Illness Recording and Reporting
Requirements
[[Continued from page 6014]]
[[Page 6015]]
industries in which the special industry presumption would apply (Exs.
15: 259, 341). For example, the American Health Care Association (AHCA)
suggested:
[i]t should not be presumed that exposure is work-related in all
long term care facilities for the elderly. Depending upon the
facility and/or its location, the incidence of TB infection/disease
in the facility may be less than that of the general public. The
Centers for Disease Control and Prevention recognizes that even
within certain settings, there are varying levels of risk (minimal
to high). TB linkage to the facility should be based on the level of
risk using the CDC assessment system, with work relatedness assigned
to facilities within the moderate to high risk classification (Ex.
15: 341).
Two commenters suggested OSHA add more industries to the proposed
list of industries to which the special industry presumption would
apply. The American Nurses Association (ANA) told the Agency that
``There should be no question on the inclusion of the home health arena
under the rubric of health care facilities. The risk of transmission
exists in all health care work sites including home health sites and
must not be limited to traditional health care facilities' (Ex. 15:
376). Alliant Techsystems (Ex. 15: 78) suggested adding ``Industries
that causes exposure outside the United States such as the airline
sector.''
Some commenters argued that recording should be limited only to TB
cases occurring in workers in specific industries, i.e., that no case
of TB in other industries, no matter how transmitted or when diagnosed,
should be recordable (see, e.g., Exs. 15: 351, 378, 396). Westinghouse
Electric Corporation recommended that ``Tuberculosis exposure or
disease cases outside of listed industries where cases would be
prevalent (such as health care facilities, long-term care facilities,
etc.) should not be recordable as an occupational illness. The logical
source of exposure would be non work-related and outside the premises
of the employer's establishment.'' Likewise, the Air Transport
Association (Ex. 15: 378) suggested that TB recording ``[s]hould be
limited to medical work environments rather than general industry. The
administrative burden far exceeds the expected benefits.''
OSHA is aware that the relative risk of TB, and of all occupational
injuries and illnesses, varies widely from industry to industry and
from occupation to occupation. However, OSHA does not consider this
circumstance relevant for recordkeeping purposes. The fact that
ironworkers experience a higher incidence of falls from elevation than
do carpenters does not mean that carpenters' injuries from such falls
should not be recorded. Congress clearly intended information such as
this to be used by individual employers and to be captured in the
national statistical program. Again, because TB infection is a
significant illness wherever in the workplace it occurs, and because no
exemption applies, it must be recorded in all covered workplaces.
Accordingly, in the final rule being published today, TB cases are
recordable without regard to the relative risk present in a given
industry, providing only that the employee with the infection has been
occupationally exposed to someone with a known case of active
tuberculosis. Employers may rebut the presumption only if a medical
investigation or other special circumstances reveal that the case is
not work-related.
In the final rule, OSHA has not adopted the ``special industries''
presumption, for several reasons. First, doing so would be inconsistent
with the approach taken by the Agency in other parts of the rule, i.e.,
specific industries have not been singled out for special treatment
elsewhere. Second, a ``special industries'' presumption is not needed
because the approach OSHA has taken in this section will provide
employers with better ways of rebutting work-relatedness when that is
appropriate. Finally, the special industries approach is not
sufficiently accurate or well enough targeted to achieve the intended
goal. Many cases of occupationally transmitted TB occur among employees
in industries other than the ``special industries,'' and evidence shows
that the risk of TB infection varies greatly among facilities in the
special industries.
Other Suggestions for Determining the Work-Relatedness of TB Cases
A number of commenters provided other suggestions for determining
the work-relatedness of TB cases (see, e.g., Exs. 15: 39, 154, 181,
188, 200, 218, 226, 335, 393, 407, 431, 436).
The Society for Human Resource Management stated:
Workers are exposed to tuberculosis in many places other than
the work site: it would be unduly burdensome to require employers to
provide evidence that the employee has had non-work exposure. Since
the employee is in the best position to retrace his or her
activities, he or she should be required to provide evidence to
establish work-relatedness (Ex. 15: 431).
OSHA does not agree that the employee is in a better position than
the employer to know whether an employee has been exposed to TB at
work. For example, the worker is not as likely to know whether a co-
worker, patient, client, or other work contact has an active TB case.
To determine whether exposure to an active case of TB has occurred at
work, the employer may interview the employee to obtain additional
information, or initiate a medical investigation of the case, but it
would be inappropriate to place the burden of providing evidence of
work-relationship on the employee.
The American Ambulance Association (Ex. 15: 226) did not support
the proposed approach of reporting an employee's positive tuberculin
skin test reaction ``unless there has [also] been documentation of a
work-related exposure.'' The American Network of Community Options and
Resources (ANCOR) argued ``ANCOR strongly opposes the inclusion of
tuberculosis unless the infection is known to have been caused at work
due to a known, active carrier'' (Ex. 15: 393). The American
Association of Occupational Health Nurses (AAOHN) proposed that the
criteria for recording TB infection or illness be ``[a]n employee tests
positive for tuberculosis infection after being exposed to a person
within the work environment known to have tuberculosis disease and the
positive test results are determined to be caused by the person in the
workplace with tuberculosis disease'' (Ex. 15: 188).
Several commenters suggested that the first case of TB occurring in
the workplace should not be recordable (see, e.g., Exs. 15: 218, 361,
398). In two separate comments, the Association for Professionals in
Infection Control (APIC) recommended:
[a]s an acceptable rebuttal to the presumption of work
relationship when an employee is found to be infected with
tuberculosis or to have active disease. The employer is able to
demonstrate that no other employee with similar duties and patient
assignments as the infected employee was found to have tuberculosis
infection or active disease (Exs. 15: 361, 398).
In addition, Bell Atlantic (Ex. 15: 218) proposed that public
health agencies be charged with determining the work-relationship of
cases of TB in the workplace. Bell Atlantic's comments to the
rulemaking record were as follows:
Bell Atlantic does not agree that tuberculosis cases should be
inherently reported. The first identified incidence of tuberculosis
in an employee group probably was not contracted in the workplace.
However, if Public Health Officials deem it necessary to require TB
testing in the facility as a preventive measure, and new cases are
found, these may be recordable. The criteria here is one of public
health, and where the disease initiated. The Public Health Agencies
[[Page 6016]]
would be charged with investigation of family members, friends, and
the community away from work.
A number of commenters misunderstood the proposal as allowing the
geographic presumption of work-relationship only to be rebutted in
certain ``high risk'' industries. For example, Alcoa commented that
``OSHA seems to conclude * * * that if someone in your workforce has TB
then each person in the workplace who tests positive is now considered
as having work-related TB due to the incidental exposure potential''
(Ex. 15: 65). ALCOA suggested that the final rule allow the geographic
presumption of work-relationship to be rebutted for ``all other
industries.''
OSHA agrees that a case of TB should be recorded only when an
employee has been exposed to TB in the workplace (i.e., that the
positional theory of causation applies to these cases just as it does
to all others). OSHA has added an additional recording criterion in
this case: for a TB case occurring in an employee to be recordable,
that employee must have been exposed at work to someone with a known
case of active tuberculosis. The language of the final rule addresses
these concerns: ``If any of your employees has been occupationally
exposed to anyone with a known case of active tuberculosis, * * *''
Under the final rule, if a worker reports a case of TB but the worker
has not been exposed to an active case of the disease at work, the case
is not recordable. However, OSHA sees no need for the employer to
document such workplace exposure, or for the Agency to require a higher
level of proof that workplace exposure has occurred in these compared
with other cases. Further, OSHA knows of no justification for excluding
cases simply because they are the first or only case discovered in the
workplace. If a worker contracted the disease from contact with a co-
worker, patient, client, customer or other work contact, the case would
be work-related, even though it was the first case detected. Many work-
related injury and illness cases would be excluded from the
recordkeeping system if cases were only considered to be work-related
when they occurred in clusters or epidemics. This was clearly not
Congress's intent.
The final rule's criteria for recording TB cases include three
provisions designed to help employers rule out cases where occupational
exposure is not the cause of the infection in the employee (i.e., where
the infection was caused by exposure outside the work environment). An
employer is not required to record a case involving an employee who has
a positive skin test and who is exposed at work if (1) the worker is
living in a household with a person who has been diagnosed with active
TB, (2) the Public Health Department has identified the worker as a
contact of a case of active TB unrelated to the workplace, or (3) a
medical investigation shows that the employee's infection was caused by
exposure to TB away from work or proves that the case was not related
to the workplace TB exposure.
The final rule thus envisions a special role for public health
departments that may investigate TB outbreaks but does not permit
employers to wait to record a case until a public health department
confirms the work-relatedness of the case. In addition, the final
rule's provisions for excluding cases apply in all industries covered
by the recordkeeping rule, just as the recording requirements apply to
all industries. The final rule thus does not include the ``special
industries'' approach of the proposal. As discussed above, the Agency
has rejected this proposed approach because it would not have been
consistent with the approach OSHA has taken elsewhere in the rule,
which is not industry-specific; it is not necessary to attain the
intended goal; and it would not, in any case, have achieved that goal
with the appropriate degree of accuracy or specificity.
A few commenters stressed that employers should not be required to
record cases where the employee was infected with TB before employment
(see, e.g., Exs. 15: 65, 407, 414). For example, Alcoa (Ex. 15: 65)
proposed that employers not be required to consider as work-related any
case where ``the employee has previously had a positive PPD [Purified
Protein Derivative] test result.'' In response to this suggestion, OSHA
has added an implementation question to the final rule to make sure
that employers understand that pre-employment skin test results for TB
are not work-related and do not have to be recorded. These results are
not considered work-related for the purposes of the current employer's
Log because the test result cannot be the result of an event or
exposure in the current employer's work environment.
NIOSH proposed to expand the recording criteria for TB infection or
disease to include the criterion that ``regardless of the industry or
source of infection, a case of active TB disease is presumed to be
work-related if the affected employee has silicosis attributable to
crystalline silica exposure in the employer's establishment'' (Ex. 15:
407). OSHA has chosen not to include this criterion in the final rule
because in NIOSH's example the case would previously have been entered
into the records as a case of silicosis. Adopting the NIOSH criterion
would result in the same illness being recorded twice.
Kaiser Permanente recommended that OSHA adopt a method for
determining the work relationship of TB cases that Kaiser Permanente
currently uses in California to evaluate whether cases are recordable,
in accordance with an agreement with the California Division of
Occupational Safety and Health (Ex. 15: 200):
1. The employer shall promptly investigate all tuberculin skin
test conversions according to the ``Guidelines for Preventing the
Transmission of Mycobacterium tuberculosis in Health-Care
Facilities'' published by the Centers for Disease Control and
Prevention (CDC Guidelines).
2. Probable exposure to Mycobacterium tuberculosis unrelated to
work environment. The conversion shall not be recorded on the log
if, after investigation, the employer reasonably determines that the
employee probably converted as a result of exposure unrelated to the
employee's work duties.
3. Probable exposure to Mycobacterium tuberculosis related to
work environment. The conversion shall be recorded on the log if,
after investigation, the employer reasonably determines that the
employee probably converted as a result of exposure related to the
employee's work duties.
4. Inability to determine probable cause of exposure. If, after
reasonably thorough investigation, the employer is unable to
determine whether the employee probably converted as a result of
exposure related to the employee's work duties, the following shall
be done:
a. The conversion shall not be recorded on the log if the
employee was, at all times during which the conversion could have
occurred, assigned to a unit or job classification, which met the
minimal risk, low risk, or very low risk criteria specified in the
CDC Guidelines.
b. In all other cases, the conversion shall be recorded on the
log.
As an initial matter, OSHA notes that the States are not authorized
to provide employers with variances to the Part 1904 regulations, under
either the rule being published today or the former rule. The issuing
of such variances is exclusively reserved to Federal OSHA, to help
ensure the consistency of the data nationwide and to make the data
comparable from state-to-state. OSHA has not adopted the approach
suggested by Kaiser Permanente because the approach is too complex,
does not apply equally to health care and non-health care settings, and
does not provide the clear guidance needed for a regulatory
requirement. However, because the final rule allows employers to rebut
the presumption of work-relatedness if a
[[Page 6017]]
medical evaluation concludes that the TB infection did not arise as a
result of occupational exposure, a physician or other licensed health
care professional could use the CDC Guidelines or another method to
investigate the origin of the case. If such an investigation resulted
in information that demonstrates that the case is not related to a
workplace exposure, the employer need not record the case. For example,
such an investigation might reveal that the employee had been
vaccinated in childhood with the BCG vaccine. The employer may wish, in
such cases, to keep records of the investigation and determination.
Section 1904.12 Recording Criteria for Cases Involving Work-Related
Musculoskeletal Disorders
Section 1904.12, entitled ``Recording criteria for cases involving
work-related musculoskeletal disorders,'' provides requirements for
recording work-related musculoskeletal disorders (MSDs). MSDs are
defined in the final recordkeeping rule as ``injuries and disorders of
the muscles, nerves, tendons, ligaments, joints, cartilage, and spinal
discs.''
Paragraph 1904.12(a) establishes the employer's basic obligation to
enter recordable musculoskeletal disorders on the Log and to check the
musculoskeletal disorder column on the right side of the Log when such
a case occurs. The paragraph states that, ``[i]f any of your employees
experiences a recordable work-related musculoskeletal disorder (MSD),
you must record it on the OSHA 300 Log by checking the
``musculoskeletal disorder'' column.'' Paragraph 1904.12(b)(1) contains
the definition of `musculoskeletal disorder' used for recordkeeping
purposes. Paragraphs 1904.12(b)(2) and 1904.12(b)(3) provide answers to
questions that may arise in implementing the basic requirement,
including questions on the work-relatedness of MSDs.
The Proposal
The proposal defined MSDs as ``injuries and illnesses * * *
result[ing] from ergonomic hazards,'' such as lifting, repeated motion,
and repetitive strain and stress on the musculoskeletal system. (61 FR
4046) This language was derived, in part, from the definition of the
term ``cumulative trauma disorders (CTDs),'' used in OSHA's Ergonomics
Program Management Guidelines For Meatpacking Plants (hereafter
``Meatpacking Guidelines''). The 1990 Meatpacking Guidelines used the
term CTDs to cover ``health disorders arising from repeated
biomechanical stress due to ergonomic hazards.'' (Ex. 11 at p. 20.)
Appendix B to the recordkeeping rule proposed requirements for
employers to follow when recording MSDs. The proposed requirements
would have required recording: (1) whenever an MSD was diagnosed by a
health care provider, or (2) whenever an employee presented with one or
more of the objective signs of such disorders, such as swelling,
redness indicative of inflammation, or deformity. When either of these
two criteria was met, or when an employee experienced subjective
symptoms, such as pain, and one or more of the general criteria for
recording injuries and illnesses (i.e., death, loss of consciousness,
days away from work, restricted work, job transfer, or medical
treatment) were met, an MSD case would have been recordable under the
proposal.
The proposal also contained special provisions for determining
whether hot and cold treatments administered to alleviate the signs and
symptoms of MSDs would be considered first aid or medical treatment.
Under the former recordkeeping rule, the application of hot and cold
treatment on the first visit to medical personnel was considered first
aid, while the application of such treatment on the second or
subsequent visit was considered to constitute medical treatment. OSHA
proposed to revise this provision to consider hot or cold therapy to be
first aid for all injuries and illnesses except MSDs, but to consider
two or more applications of such therapy medical treatment if used for
an MSD case (61 FR 4064). Whether hot and cold therapies constitute
first aid or medical treatment is addressed in detail in section 1904.7
of the final recordkeeping rule. As discussed in that section, under
the final rule, hot and cold therapies are considered first aid,
regardless of the type of injury or illness to which they are applied
or the number of times such therapy is applied.
The Final Rule's Definition of Musculoskeletal Disorder
The preamble to the proposal described an MSD as an injury or
disorder ``resulting from'' ergonomic hazards. However, OSHA has not
carried this approach forward in the final rule because it would rely
on an assessment of the cause of the injury, rather than the nature of
the injury or illness itself.
Paragraph 1904.12(b)(1) of the final rule therefore states, in
pertinent part, that MSDs ``are injuries and disorders of the muscles,
nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs do
not include injuries caused by slips, trips, falls, or other similar
accidents.'' This language clarifies that, for recordkeeping purposes,
OSHA is not defining MSDs as injuries or disorders caused by particular
risk factors in the workplace. Instead, the Agency defines MSDs as
including all injuries to the listed soft tissues and structures of the
body regardless of physical cause, unless those injuries resulted from
slips, trips, falls, motor vehicle accidents, or similar accidents. To
provide examples of injuries and disorders that are included in the
definition of MSD used in the final rule, Section 1904.12(b)(1)
contains a list of examples of MSDs; however, musculoskeletal
conditions not on this list may also meet the final rule's definition
of MSD.
Determining the Work-Relatedness of MSDs
Section 1904.12(b)(2) provides that ``[t]here are no special
criteria for determining which musculoskeletal disorders to record. An
MSD case is recorded using the same process you would use for any other
injury or illness.'' This means that employers must apply the criteria
set out in sections 1904.5-1904.7 of the final rule to determine
whether a reported MSD is ``work-related,'' is a ``new case,'' and then
meets one or more of the general recording criteria. The following
discussion supplements the information provided in the summary and
explanation accompanying section 1904.5, to assist employers in
deciding which MSDs are work-related.
For MSDs, as for all other types of injuries and illnesses, the
threshold question is whether the geographic presumption established in
paragraph 1904.5(a) applies. The presumption applies whenever an MSD or
other type of injury or illness ``results from an event or exposure in
the work environment.'' For recordkeeping purposes, an ``event'' or
``exposure'' includes any identifiable incident, occurrence, activity,
or bodily movement that occurs in the work environment. If an MSD can
be attributed to such an event or exposure, the case is work related,
regardless of the nature or extent of the ergonomic risk factors
present in the workplace or the worker's job.
This position is not new to the final rule; it is clearly reflected
in the 1986 BLS Recordkeeping Guidelines. The Guidelines contain the
following discussion of the applicability of the work-relatedness
presumption to back injuries and hernia cases, which reflects OSHA's
position under this final rule:
Back and hernia cases should be evaluated in the same manner as
any other case.
[[Page 6018]]
Questions concerning the recordability of these cases usually
revolve around: (1) The impact of a previous back or hernia
condition on the recordability of the case, or (2) whether or not
the back injury or hernia was work-related.
Preexisting conditions generally do not impact the recordability
of cases under the OSHA system. * * * For a back or hernia case to
be considered work-related, it must have resulted from a work-
related event or exposure in the work environment. Employers may
sometimes be able to distinguish between back injuries that result
from an event in the work environment, and back injuries that are
caused elsewhere and merely surface in the work environment. The
former are recordable; the latter are not. This test should be
applied to all injuries and illnesses, not just back and hernia
cases. Guidelines at p. 32 (emphasis in original).
The Guidelines provide the following question and answer to
illustrate that MSDs may be attributable to events or exposures in the
work environment that pose little apparent ergonomic risk:
B-16 Q. An employee's back goes out while performing routine
activity at work. Assuming the employee was not involved in any
stressful activity, such as lifting a heavy object, is the case
recordable?
A. Particularly stressful activity is not required. If an event
(such as a * * * sharp twist, etc.) occurred in the work environment
that caused or contributed to the injury, the case would be
recordable, assuming it meets the other requirements for
recordability. Guidelines at p. 32 (emphasis in original).
OSHA believes that, in most cases, an employee who reports an MSD
at work will be able to identify the activity or bodily movements (such
as lifting, twisting, or repetitive motions) that produced the MSD. If
the activity or movements that precipitated the disorder occurred at
work, the presumption of work-relatedness is established without the
need for further analysis. However, cases may arise in which it is
unclear whether the MSD results from an event or exposure in the work
environment. In these cases, paragraph 1904.5(b)(3) of the final rule
directs the employer to evaluate the employee's work activities to
determine whether it is likely that one or more events or exposures in
the work environment caused or contributed to the disorder. In this
situation the employer would consider the employee report, the
ergonomic risk factors present in the employee's job, and other
available information to determine work-relationship.
In evaluating job activities and work conditions to identify
whether ergonomic risk factors are present, employers may turn to
readily available sources of information for assistance, such as
materials made available by OSHA on its web site, current scientific
evidence, available industry guidelines, and other pertinent sources.
This final rule does not establish new or different criteria for
determining whether an MSD is more likely than not to have resulted
from work activities or job conditions, i.e., from exposure to
ergonomic risk factors at work. As is the case for all injuries and
illnesses, the employer must make a good faith determination about
work-relatedness in each case, based on the available evidence.
The preamble discussion for paragraph 1904.5(b)(3) contains some
examples to assist employers in making this determination. In addition,
the BLS Guidelines contain the following examples:
Q. Must there be an identifiable event or exposure in the work
environment for there to be a recordable case? What if someone
experiences a backache, but cannot identify the particular movement
which caused the injury?
A. Usually, there will be an identifiable event or exposure to
which the employer or employee can attribute the injury or illness.
However, this is not necessary for recordkeeping purposes. If it
seems likely that an event or exposure in the work environment
either caused or contributed to the case, the case is recordable,
even though the exact time or location of the particular event or
exposure cannot be identified.
If the backache is known to result from some nonwork-related
activity outside the work environment and merely surfaces at work,
then the employer need not record the case. In these situations,
employers may want to document the reasons they feel the case is not
work related. (BLS Guidelines, p. 32.)
Comments on Other Approaches to Recording MSDs
Commenters provided OSHA with several suggestions for recording
musculoskeletal disorders: requiring diagnosis by a health care
professional, recording symptoms lasting seven days, and eliminating
special criteria for recording MSD cases. These are discussed below.
Eliminating Special Criteria for Recording MSD Cases
A large number of commenters suggested that the recordkeeping rule
should not contain criteria for recording MSD cases that were different
from those for recording all injuries and illnesses, arguing that they
should be captured using the criteria for all other types of injuries
and illnesses (see, e.g., Exs. 15: 9, 44, 76, 109, 122, 123, 130, 145,
146, 176, 188, 199, 201, 218, 235, 272, 273, 288, 289, 301, 303, 304,
347, 351, 359, 368, 386, 392, 395, 396, 409, 425, 427). The comments of
PPG Industries, Inc. (Ex. 15: 109) are representative of these views:
``The system for evaluating all cases should be consistent. When
evaluating musculoskeletal disorders, the normal recordkeeping criteria
should be used.'' The Voluntary Protection Programs Participants'
Association (VPPPA) also recommended that ``MSDs should be treated as
any other injury or illness. If the problem arises to the level of
seriousness that it is a recordable injury or illness, then it should
be recorded on the log'' (Ex. 15: 425). The National Safety Council
(Ex. 15: 359) recommended that ``if an employee has pain, he or she
should report it. It then becomes recordable or not recordable based on
the usual criteria. The employer makes a decision on a case by case
basis.''
OSHA agrees with these commenters that MSD cases should be recorded
in the same way as other injuries and illnesses, and should not have
separate recordability criteria. Using the same criteria for these
cases, which constitute one-third of all occupational injuries and
illnesses, simplifies the final rule and makes the system easier for
employers and employees to use. Employing consistent recording criteria
thus helps to achieve one of OSHA's major goals in this rulemaking,
simplification. Section 1904.12 has been included in the final rule not
to impose different recording criteria on MSDs, but to emphasize that
employers are to record MSD cases like all other injuries and
illnesses. OSHA believes that this approach to the recording of MSDs
will yield statistics on musculoskeletal disorders that are reliable
and complete.
Requiring Diagnosis by a Health Care Professional
A number of commenters recommended that OSHA require the recording
of musculoskeletal disorders only when they are diagnosed by a health
care professional or identified by a medical test result (see, e.g.,
Exs. 15: 20, 22, 39, 42, 44, 57, 60, 78, 82, 121, 126, 146, 173, 199,
201, 218, 225, 242, 246, 247, 248, 259, 272, 288, 289, 303, 318, 324,
332, 335, 341, 342, 348, 351, 355, 356, 357, 364, 366, 378, 384, 397,
414, 424, 440, 441). The National Electrical Contractors Association
(NECA) requested that ``OSHA modify the current criteria to state
``Positive x-ray showing broken bones or fracture, diagnosis of broken
teeth, or diagnosis of acute soft tissue damages'' (Ex. 15: 126). The
United Technologies Company (UTC) agreed that ``MSDs should only be
recorded if the diagnosis is made by a health care provider operating
within the scope of his or her specialty'' (Ex. 15: 440). The National
[[Page 6019]]
Coalition on Ergonomics (Ex. 15: 366) urged OSHA to limit the recording
of MSD cases to those diagnosed by highly qualified health care
professionals:
[O]SHA should not encourage unqualified individuals to
``diagnose'' musculoskeletal disorders given the present state of
medical knowledge of their causes and cures. * * * Therefore, OSHA
should limit in the definition of musculoskeletal disorders the
diagnosis to qualified and trained physicians, and such other
practitioners as are accepted by the medical community as having the
training and skill necessary to adequately and appropriately treat
these cases.
Other commenters expressed similar opinions, arguing that the work
relationship of a given case should be determined by a health care
professional (see, e.g., Exs. 15: 9, 105, 248, 249, 250, 262, 272, 288,
303, 304, 324, 366, 397, 408, 440). The Footwear Industries of America
(Ex. 15: 249) recommended that ``An MSD should be recordable only if it
is diagnosed by a health-care provider based on a determination that
the MSD is clearly work-related--that is, caused by the work
environment.'' The American Dental Association (Ex. 15: 408) suggested
that ``OSHA should not require employers to keep records of
musculoskeletal disorders unless and until a physician identifies work
as the ``predominant cause'' in a given case.'' United Technologies
Company recommended that the health care provider use a check list to
make this determination: ``UTC also believes that the provider should
be required to complete a check list regarding work relatedness with
the language changed to include predominantly caused by the work
environment and the submittal of information by the employer'' (Ex. 15:
440).
The Northrop Grumman Association (Ex. 15: 42) suggested that
``Recordability should only be based on objective, documented findings
by a licensed physician. In [proposed] mandatory Appendix B,
recordability is defined as diagnosis by a health care provider and/or
objective findings. The `or' should be deleted. Only positive test
findings should denote recordability. There are physicians who diagnose
cases without any objective tests to confirm their diagnosis.'' Other
commenters (see, e.g., Exs. 15: 44, 386, 330, 332) recommended that MSD
cases be recorded only when they are diagnosed by a health care
provider and/or are identified by a positive test result and meet the
general recording criteria.
A few commenters argued that a health care professional's diagnosis
should not be considered evidence of work-relatedness (see, e.g., Exs.
15: 347, 363, 409). For example, the American Automobile Manufacturers
Association (AAMA) remarked that ``[w]e strongly oppose the recording
of a musculoskeletal disorder based solely on the diagnosis by a health
care provider. A diagnosis, in and of itself, does not reflect whether
a musculoskeletal disorder is significant or serious in nature. Health
care providers record a description or diagnosis of an employee's
complaint whether minor or serious.'' On the other hand, the American
Federation of State, County, and Municipal Employees (Ex. 15: 362)
argued that ``[w]orkers may not see a health care professional until
after they have endured symptoms for an extended period * * * The
reality of the situation is that a great number of workers who suffer
from symptoms will not be diagnosed by a health care provider unless or
until their condition becomes severe and/or disabling.''
As discussed in the preamble to the work relationship section of
the final rule (Sec. 1904.5), an employer is always free to consult a
physician or other licensed health care professional to assist in
making the determination of work relationship in individual injury or
illness cases, including musculoskeletal disorders. If a physician or
other licensed health care professional has knowledge of the employee's
current job activities and work conditions, work history, and the work
environment, he or she can often use that information, along with the
results of a medical evaluation of the worker, to reach a conclusion
about the work-relatedness of the condition. Relying on the expertise
of a knowledgeable health care professional can be invaluable to the
employer in those infrequent cases for which it is not clear whether
workplace events or exposures caused or contributed to the MSD or
significantly aggravated pre-existing symptoms. Employers may also
obtain useful information from ergonomists, industrial engineers, or
other safety and health professionals who have training and experience
in relevant fields and can evaluate the workplace for the presence of
ergonomic risk factors.
However, OSHA does not require employers to consult with a
physician or other licensed health care professional or to have the
employee undergo medical tests when making work-relationship
determinations. The Agency finds that doing so would be both
unnecessary and impractical in the great majority of cases and would
result both in delaying the recording of occupational MSD cases and
increasing medical costs for employers.
In most situations, an evaluation by a physician or other licensed
health care professional is simply not needed in order to make a
recording decision. For example, if a worker strains a muscle in his or
her back lifting a heavy object, and the back injury results in days
away from work, there is no doubt either about the work-relationship of
the case or its meeting of the recording criteria. Similarly, if a
worker performing a job that has resulted in MSDs of the wrist in other
employees reports wrist pain and restricted motion, and the employer
places the employee on restricted work, the case is recordable and
there is no need to await a clinical diagnosis.
Recording of MSD Symptoms
In the preamble to the proposed rule (61 FR 4047), OSHA asked:
There is a concern that the proposed criteria [for recording
MSDs] will result in a situation where workers could be working with
significant pain for an extended period of time, without their case
being entered into the records. OSHA has been asked to consider an
additional recording criterion for these cases: record when the
employee reports symptoms (pain, tingling, numbness, etc.)
persisting for at least 7 calendar days from the date of onset. OSHA
asks for input on this criterion.
Some commenters urged OSHA to require employers to record MSD cases
where an employee reports symptoms that have persisted for at least 7
calendar days (see, e.g., Exs. 15: 87, 129, 186, 362, 369, 371, 374,
380). The American Federation of State County and Municipal Employees,
AFL-CIO (AFSCME) recommended:
Under-reporting of MSDs will increase if OSHA adopts this
proposal. It has been AFSCME's experience that workers experiencing
pain, soreness, tenderness, numbness, tingling and other sensations
in their extremities or back do not immediately report these
symptoms to their employer. Rather, most employees first attempt to
alleviate their symptoms on their own: they ingest medications, use
topical solutions, apply heat or cold to affected areas, or utilize
other remedies in their attempt to relieve pain, aches, stiffness,
or other symptoms. OSHA should require that these cases be recorded
when symptoms last for seven consecutive days.
Investigations conducted by AFSCME repeatedly demonstrate that
inclusion of the additional criterion is necessary in order to
ascertain accurately the number of work-related MSDs. Employer
records typically show MSD rates at or even well below ten percent
of employees at risk for these injuries. However, results of AFSCME-
conducted symptom surveys show that it is common for a third or more
of the employees to respond that they have felt pain, numbness,
tingling, or other symptoms that have persisted for more than seven
days.* * *
[[Page 6020]]
AFSCME wishes to emphasize that accurate and complete recording
of MSDs is critically important. Early detection, proper medical
intervention, and appropriate measures to address ergonomic risk
factors in the workplace are all necessary to prevent and manage
MSDs (Ex. 15: 362).
Many commenters objected to the proposed 7-day symptom recording
concept (see, e.g., Exs. 15: 9, 20, 39, 122, 127, 128, 170, 230, 246,
248, 281, 289, 324, 330, 332, 341, 359, 378, 397, 406, 434). David E.
Jones of the law firm of Ogletree, Deakins, Nash, Smoak & Stewart (Ex.
15: 406) stated that this provision was unnecessary because ``[t]he
prevalent experience has shown that employers typically record those
symptoms when they result in medical treatment, restricted work
activity, or days away from work.'' The Eli Lilly Company (Ex. 15: 434)
also observed that ``[b]ased on input from [our] occupational health
physicians, the vast majority of MSD-type cases would manifest into
objective findings or a MSD diagnosis after 7 calendar days of
legitimate subjective symptoms.''
Other objections to the proposal's 7-day symptom trigger were based
on practical considerations. Many commenters were opposed to recording
undiagnosed conditions that persist for seven days on the grounds that
the seriousness or veracity of the complaint of pain or other symptoms
could not be established by the employer (see, e.g., Exs. 15: 9, 20,
39, 121, 122, 127, 128, 170, 218, 230, 246, 248, 281, 289, 359, 366,
397). For example, the Dayton Hudson Corporation (Ex. 15: 121) stated:
``[s]elf-reporting of symptoms with no medical findings or evaluation
is an invitation for abuse. Are these cases work-related or serious?
Are they even real?'' Clariant Corporation held the view that
``[d]isgruntled employees could use subjective findings as a means of
avoidance. It could be used to prevent them from doing a job or task
they do not like'' (Ex. 15: 217). The National Coalition on Ergonomics
(Ex. 15: 366) opposed any recordation based on symptoms alone, stating:
First, persistent pain is a symptom, not a disorder, and
therefore cannot be a case. There is often no indication that
persistent pain is work-related, except that as the person becomes
more fatigued, the pain may appear or become more intense. Further,
because pain is subjective, there is no way to quantify it so as to
focus only on serious cases. Finally, pain can exist without an
underlying pathology. Pain in and of itself cannot be a case in the
absence of a diagnosis by a qualified medical practitioner, provided
that the case is serious, disabling or significant.
Second, other symptoms mentioned in OSHA's question do not
represent cases either. As we discuss below, individual symptoms are
not illnesses; symptoms, in conjunction with appropriate signs and/
or laboratory results are essential to diagnose specific conditions.
Since symptoms do not define cases, OSHA cannot--indeed, should
not--require employers to record complaints of uncertain validity
and non-specific origin. It is perhaps true that such employees
should see a trained physician or other practitioner, but only after
this event will there be a case to record, if one exists at all.
Linda Ballas & Associates (Ex. 15: 31) expressed a different
concern, namely that ``[i]f an employee is experiencing pain, or
reports symptoms--the clock should not have to click to 7 days before
the case is recordable. This will lead to under recording and under
reporting * * * .''
In response to the comments on this issue, OSHA finds that pain
and/or other MSD symptoms, of and by themselves, may indicate an injury
or illness. In this regard, MSD cases are not different from other
types of injury or illness. As discussed in the preamble to the
definitions section of the final rule (Subpart G), symptoms such as
pain are one of the primary ways that injuries and illnesses manifest
themselves. If an employee reports pain or other symptoms affecting the
muscles, nerves, tendons, etc., the incident must be evaluated for
work-relatedness, and, if determined by the employer to be work-
related, must be tested against the recording criteria to determine its
recordability. If it is determined by the employer to be recordable, it
must be recorded as an MSD on the OSHA 300 Log.
The ICD-9-CM manual, the International Classification of Diseases,
Clinical Modification (ICD-CM), the official system of assigning codes
to diagnoses of disease, injury and illness, lists several MSD
conditions that consist only of pain. That is, when health care
professionals diagnose these disease states, they do so on the basis of
employee-reported pain (health care professionals often evaluate and
confirm such reports by physical examination when making a diagnosis).
According to the National Center for Health Statistics (NCHS), the
agency responsible for the coordination of all official disease
classification activities in the United States relating to the
International Classification of Diseases (ICD), the ICD-CM is the
official system of assigning codes to diagnoses and procedures
associated with hospital utilization in the United States, and is used
to code and classify morbidity data from inpatient and outpatient
records, physicians' offices, and most NCHS surveys. The following
table includes a few illustrative examples of ICD illness codes for
pain-related disorders that would be considered MSD cases under OSHA's
definition and would thus warrant an evaluation of work-relatedness by
the employer.
------------------------------------------------------------------------
ICD code Name and description
------------------------------------------------------------------------
723.1.................................. Cervicalgia--Pain in neck.
724.1.................................. Pain in thoracic spine.
724.2.................................. Lumbago--Low back pain.
724.5.................................. Backache, unspecified.
------------------------------------------------------------------------
(NCHS Internet home page, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.cdc.gov/nchswww/about/otheract/icd9)
Pain is a symptom that generally indicates the existence of some
underlying physiological condition, such as inflammation, damage to a
spinal disc, or other biomechanical damage. The occurrence of pain or
other symptoms (such as, in the case of MSDs, tingling, burning,
numbness, etc.) is thus indicative of an incident that warrants
investigation by the employer for work-relatedness, the first step in
the injury and illness reporting and recording process. The occurrence
of pain or other symptoms, however, is not enough, in the absence of an
injury or illness that meets one or more of the recording criteria, to
make any injury or illness (including an MSD case) recordable under
Part 1904. Employers are not required to record symptoms unless they
are work-related and the injury or illness reaches the seriousness
indicated by the general recording criteria, which for MSD cases will
almost always be days away from work, restricted work, medical
treatment, or job transfer. Thus, the requirements governing the
recording of all injuries and illnesses will work to ensure that
symptoms such as the aches and pains that most people experience from
time to time during their lives, are not automatically recorded on the
OSHA Log. These same recording requirements will also ensure that those
MSDs that are determined by the employer to be work-related and that
also meet one or more of the recording criteria will be captured in the
national statistics.
If the employer is concerned that the case is not work-related, he
or she can refer the employee to a health care professional for a
determination, evaluation, or treatment. In this situation, or when the
employee has already obtained medical attention, the physician or other
licensed health care professional can help to differentiate between
work-related and non-work-related cases, minor aches and pains, or
inappropriate employee reports. This is no different for MSD cases than
for
[[Page 6021]]
other types of injuries and illnesses, and does not represent a new
problem in the determination of work-related injury and illness. There
have always been disputes between workers and employers over the
existence of an injury or illness and whether it is work-related. If an
employer subsequently demonstrates that a worker is malingering or
determines that an injury or illness or is not work-related (using
OSHA's definition of work-related), the employer may remove the
recorded entry from the OSHA 300 Log.
Although OSHA believes that pain or other symptoms indicate an
injury or illness that warrants additional analysis, the final rule has
not adopted persistent symptoms alone, whether lasting for 7 days or
any other set time period, as an automatic recording criterion. OSHA is
concerned about workers who experience persistent pain for any reason,
and such pain, if work-related, may well warrant an inquiry into the
employee's work conditions and the taking of administrative actions.
However, pain or other symptoms, standing alone, have not ordinarily
been captured by the OSHA recordkeeping system, and OSHA has
accordingly not adopted persistent musculoskeletal pain as a recording
criterion, for the following reasons.
First, as discussed earlier, OSHA does not believe that MSD cases
should receive differential treatment for recording purposes, and the
final rule does not contain different criteria for recording MSD cases;
instead, it relies on the general criteria of Sec. 1904.7 to capture
MSD cases. OSHA finds that, for recordkeeping purposes, MSD pain is no
different in nature than the pain caused by a bruise, cut, burn or any
other type of occupational injury or illness. For example, the OSHA
rule does not contain a criterion requiring that if a burn, cut or
bruise results in pain for seven days it is automatically recordable.
Creating a special provision for MSD pain would create an inconsistency
in the rule.
Further, OSHA believes that the provisions of the final
recordkeeping rule, taken together will appropriately capture reliable,
consistent, and accurate data on MSD cases. Incorporating a clear
definition of MSDs, clarifying the rule's requirements for determining
work-relatedness; and refining the definitions of restricted work,
first aid and medical treatment; will all work together to improve the
quality of the Log data on MSDs. OSHA concludes, based on an analysis
of the record evidence on MSDs, that the general recording criteria
will enhance the data on work-related, non-minor MSDs occurring in the
workplace, and that an additional ``persistent pain'' criterion is
unnecessary for purposes of the recordkeeping system.
New hires
Some commenters encouraged OSHA to find a way to exclude MSD cases
that involve minor muscle soreness in newly hired employees, i.e., to
allow employers to not record MSDs occurring during a ``break-in''
period (see, e.g., Exs. 15: 27, 31, 39, 82, 87, 105, 186, 198, 204,
221, 239, 272, 283, 289, 303, 330, 359, 374, 412, 440). For example,
the American Meat Institute (Ex. 15: 330) remarked: ``Employees
returning from vacation, or other extended break periods from the job
function, could have normal muscle aches to which hot/cold packs could
provide relief. Recording such cases would not meet the purpose [of the
OSHA Act] either.'' On the same topic, the National Safety Council (Ex.
15: 359) wrote:
The concept of forgiveness for a short period of adjustment to
return to work makes good sense in industries that are traditionally
very resistant to early return to work programs. If allowing for a
short ``break-in'' period helps get workers safely and comfortably
back to full productivity and earning capacity it should be
seriously considered. The Council recommends, however, that no
specific method be developed in the proposed rule because situations
may vary greatly from industry to industry.
The Harsco Corporation (Ex. 15: 105) suggested ``Construction
activities can be a physically demanding occupation. If a person hasn't
worked in a period of time, the first couple of days can be very tough.
To transfer a person to a different task which would allow for the
affected body part to rest should have no bearing on recordability if
no other treatment is required.''
Other commenters disagreed, however, that a recording exemption for
injuries occurring during a break-in period was appropriate (see, e.g.,
Exs. 15: 68, 359, 371). For example, the State of New York Workers'
Compensation Board (Ex. 15: 68) stated that:
As to the exclusion of minor soreness commonly occurring to
newly hired employees or employees on a rehab assignment during a
``break-in stage'', we do not envision any reason to exclude
reporting solely on this basis. The criteria should not be to whom
the injury happens, but rather whether the injury would otherwise be
reportable regardless of who is injured.
The United Food and Commercial Workers Union (UFCW) argued:
We could not disagree more with the agency. The current proposal
in fact screens out all fleeting cases, and includes only those
cases that are serious, have progressed and become debilitating.
Only those cases with serious medical findings, lost workdays,
restricted days and those receiving medical treatment are currently
recordable--not those with fleeting pain that goes away with a good
nights rest (Ex. 15: 371).
After a review of the record on this topic, OSHA finds that no
special provision for newly hired or transferred workers should be
included in the final rule. As the National Safety Council stated, it
would be very difficult to identify a single industry-wide method for
dealing with break-in or work conditioning periods. Any method of
exempting such cases would risk excluding legitimate work-related,
serious MSD cases. A newly hired employee can be injured just as easily
as a worker who has been on the job for many years. In fact,
inexperience on the job may contribute to an MSD injury or illness. For
example, a new worker who is not aware of the need to get assistance to
move a heavy load or perform a strenuous function may attempt to do the
task without help and be hurt in the process. Cases of this type, if
determined to be work-related, are appropriately included in national
statistics on occupational injuries and illnesses.
OSHA notes that minor muscle soreness, aches, or pains that do not
meet one or more of the general recording criteria will not be recorded
on the OSHA 300 Log. Therefore, the system already excludes minor aches
and pains that may occur when employees are newly hired, change jobs,
or return from an extended absence. These cases will be recorded only
if they reach the level of seriousness that requires recording. The
final rule's definition of first aid includes hot/cold treatments and
the administration of non-prescription strength analgesics, two of the
most common and conservative methods for treating minor muscle
soreness. Thus, the final rule allows newly hired workers to receive
these first aid treatments for minor soreness without the case being
recordable.
The Ergonomics Rulemaking
Many of the comments OSHA received on the proposed recordkeeping
rule referred to OSHA's efforts to develop an ergonomics standard.
Several commenters argued that OSHA was trying, through the
recordkeeping rule, to collect data to support an ergonomics standard
(see, e.g., Exs. 22, 183, 215, 304, 346, 397). Typical of these views
was that of the National Beer Wholesalers Association (NBWA) (Ex. 15:
215):
[[Page 6022]]
NBWA is especially troubled by the likelihood that the new
definitions of what injuries must be recorded and reported in the
current proposed rule are intended artificially to inflate the
number of reported musculoskeletal disorders, whether work-related
or not. Such a surge in MSDs could be used to justify additional
work on a workplace ergonomics rule despite the notable lack of a
scientific basis for regulation in this area.
Other commenters believed that OSHA was using the recordkeeping
rule to conduct a ``backdoor rulemaking'' to control ergonomics hazards
in the workplace (see, e.g., Exs. 15: 86, 215, 287, 304, 404, 412,
426). For example, the Reynolds Aluminum Company stated that:
Reynolds supports the inclusion of musculo-skeletal disorders
(MSDs) on the OSHA log, but does not support the industry-wide
application of the Ergonomics Program Management Guidelines For
Meatpacking Plants as the criteria for determining recordability. By
incorporating these guidelines into Appendix B, OSHA would be
implementing an ergonomics program. It would be inappropriate and
without legal or scientific basis to burden all industries with
ergonomic guidelines designed for a specific, unique industry (Ex.
15: 426).
Several commenters stated that the injury and illness recordkeeping
rules should not address musculoskeletal disorders until after an
ergonomics standard has been completed (see, e.g., Exs. 15: 13, 95,
393). For example, Entergy Services, Inc. (Ex. 15: 13) expressed the
following concerns:
This area is of concern since there is no standard that really
covers this issue except the meat packers standard * * * It is
believed that to record this type case, a standard should be in
place or language should be written to look at true disorders with
long term effect as compared to short term symptoms.
Many commenters also made comments on the overall debate about
ergonomics, i.e., that the medical community has not reached consensus
on what constitutes an MSD (see, e.g., Exs. 15: 116, 1267, 323, 355),
that there is too much scientific uncertainty about the issue of
ergonomics (see, e.g., Exs. 15: 57, 215, 304, 312, 342, 344, 355, 393,
397, 412, 424), that science and medicine cannot tell what is work-
related and what is not (see, e.g., Exs. 15: 204, 207, 218, 323, 341,
342, 3546, 408, 412, 424, 443), that OSHA needs to do more research
before issuing a rule (Ex. 15: 234), that ``musculoskeletal disorder''
is a vague category (Ex. 15: 393), and that OSHA should drop the issue
until the science is better (Ex. 15: 204).
OSHA does not agree that the provisions on the recording of MSDs
contained in this recordkeeping rule would conflict in any way with
OSHA's ergonomics rulemaking. Unlike the proposed ergonomics standard,
the final ergonomics standard does not use an OSHA recordable case as a
``trigger'' that would require an employer to implement an ergonomics
program. As a result, a recordable musculoskeletal disorder does not
necessarily mean that the employer is required to implement an
ergonomics program. The recordkeeping rule's provisions on the
reporting of MSDs simply address the most consistent and appropriate
way to record injury and illness data on these disorders. MSDs, like
all other injuries and illnesses, must be evaluated for their work-
relatedness and their recordability under the recordkeeping rule's
general recording criteria; only if the MSD meets these tests is the
case recordable. Additionally, OSHA has required the recording of MSDs
for many years.
The recordkeeping rule and the ergonomics standard treat MSDs
somewhat differently because the purpose of the two rules is different.
Thus, although many of the requirements in the two rules are the same,
some requirements reflect the different purposes of the two
rulemakings. For example, the recordkeeping rule defines MSDs more
broadly than the ergonomics rule because one of the purposes of the
Part 1904 recordkeeping system is to gather broad information about
injuries and illnesses; the ergonomics standard, in contrast, is
designed to protect workers from those MSD hazards the employer has
identified in their job. Another difference between the two rules is
that the ergonomics standard requires employers to evaluate employee
reports of MSD signs and symptoms that last for seven consecutive days,
although the recordkeeping rule does not require employers to record
signs and symptoms that last for seven consecutive days unless such
signs or symptoms involve medical treatment, days of restricted work,
or days away from work. The record in the ergonomics rulemaking
strongly supported early reporting of MSD signs and symptoms because
such early reporting reduces disability, medical costs, and lost
productivity. However, evidence in the recordkeeping rulemaking did not
support a requirement that persistent signs and symptoms of all
occupational injuries and illnesses be recorded on the OSHA Log, and
the final recordkeeping rule accordingly contains no such requirement.
Section 1904.29 Forms
Section 1904.29, titled ``Forms,'' establishes the requirements for
the forms (OSHA 300 Log, OSHA 300A Annual Summary, and OSHA 301
Incident Report) an employer must use to keep OSHA Part 1904 injury and
illness records, the time limit for recording an injury or illness
case, the use of substitute forms, the use of computer equipment to
keep the records, and privacy protections for certain information
recorded on the OSHA 300 Log.
Paragraph 1904.29(a) sets out the basic requirements of this
section. It directs the employer to use the OSHA 300 (Log), 300A
(Summary), and 301 (Incident Report) forms, or equivalent forms, to
record all recordable occupational injuries and illnesses. Paragraph
1904.29(b) contains requirements in the form of questions and answers
to explain how employers are to implement this basic requirement.
Paragraph 1904.29(b)(1) states the requirements for: (1) Completing the
establishment information at the top of the OSHA 300 Log, (2) making a
one- or two-line entry for each recordable injury and illness case, and
(3) summarizing the data at the end of the year. Paragraph
1904.29(b)(2) sets out the requirements for employers to complete the
OSHA 301 Incident Report form (or equivalent) for each recordable case
entered on the OSHA 300 Log. The requirements for completing the annual
summary on the Form 300A are found at Section 1904.32 of the final
rule.
Required Forms
OSHA proposed to continue to require employers to keep both a Log
(Form 300) and an Incident Report form (Form 301) for recordkeeping
purposes, just as they have been doing under the former rule. OSHA
received no comments on the use of two forms for recordkeeping
purposes, i.e., a Log with a one-line entry for each case and a
supplemental report that requires greater detail about each injury or
illness case. OSHA has therefore continued to require two recordkeeping
forms in the final rule, although these have been renumbered (they were
formerly designated as the OSHA 200 Log and the OSHA 101 Supplementary
Report).
In addition to establishing the basic requirements for employers to
keep records on the OSHA 300 Log and OSHA 301 Incident Report and
providing basic instructions on how to complete these forms, this
section of the rule states that employers may use two lines of the OSHA
300 Log to describe
[[Page 6023]]
an injury or illness, if necessary. Permitting employers to use two
lines when they need more space and specifying this information in the
rule and on the Log responds to several comments (see, e.g., Exs. 37;
15: 138, 389) about the lack of adequate space for descriptive
information on the proposed OSHA 300 Log form. OSHA believes that most
injury and illness cases can be recorded using only one line of the
Log. However, for those cases requiring more space, this addition to
the Log makes it clear that two lines may be used to describe the case.
The OSHA 300 Log is designed to be a scannable document that employers,
employees and government representatives can use to review a fairly
large number of cases in a brief time, and OSHA believes that employers
will not need more than two lines to describe a given case. Employers
should enter more detailed information about each case on the OSHA 301
form, which is designed to accommodate lengthier information.
Deadline for Entering a Case
Paragraph 1904.29(b)(3) establishes the requirement for how quickly
each recordable injury or illness must be recorded into the records. It
states that the employer must enter each case on the OSHA 300 Log and
OSHA 301 Form within 7 calendar days of receiving information that a
recordable injury or illness has occurred. In the vast majority of
cases, employers know immediately or within a short time that a
recordable case has occurred. In a few cases, however, it may be
several days before the employer is informed that an employee's injury
or illness meets one or more of the recording criteria.
The former recordkeeping rule required each injury or illness to be
entered on the OSHA Log and Summary no later than six working days
after the employer received information about the case. OSHA proposed
to change this interval to 7 calendar days. Several commenters agreed
that allowing 7 calendar days would simplify the reporting time
requirement and reduce confusion for employers (see, e.g., Exs. 36; 15:
9, 36, 65, 107, 154, 179, 181, 203, 332, 369, 387). Other commenters
(see, e.g., Exs. 15: 46, 60, 82, 89, 184, 204, 225, 230, 239, 283, 288,
305, 348, 375, 390, 346, 347, 348, 358, 389, 409, 423, 424, 431)
objected to the proposed 7 calendar-day requirement, principally on the
grounds that the proposed 7 calendar-day time limit would actually be
shorter than the former rule's 6 working-day limit in some situations,
such as if a long holiday weekend intervened (see, e.g., Exs. 15: 9,
60, 230, 272, 375).
One commenter urged OSHA to adopt a 21-day period because
conducting a thorough investigation to determine whether a case is
work-related or a recurrence of an old case can sometimes take longer
than 7 or even 10 days (Ex. 15: 184). In the final rule, OSHA is
adopting a 7 calendar-day time limit for the recording of an injury or
illness that meets the rule's recording criteria. For many employers,
the 7 day calendar period will be longer than the former 6 working day
period. Although it is true that, in other cases, a 7 calendar-day
limit may be slightly shorter than the former rule's 6 working-day
limit, the Agency believes that the 7 calendar-day rule will provide
employers sufficient time to receive information and record the case.
In addition, a simple ``within a week'' rule will be easier for
employers to remember and apply, and is consistent with OSHA's
decision, in this rule, to move from workdays to calendar days whenever
possible. The Agency believes that 7 calendar days is ample time for
recording, particularly since the final rule, like the former rule,
allows employers to revise an entry simply by lining it out or amending
it if further information justifying the revision becomes available.
The final rule does contain one exception for the 7 day recording
period: if an employee experiences a recordable hearing loss, and the
employer elects to retest the employee's hearing within 30 days, the
employer can wait for the results of the retest before recording.
Equivalent Forms and Computerized Records
Commenters were unanimous in urging OSHA to facilitate the use of
computers and to allow the use of alternative forms in OSHA
recordkeeping (see, e.g., Exs. 21, 22, 15:9, 11, 45, 72, 95, 111, 184,
262, 271, 288, 305, 318, 341, 346, 389, 390, 396, 405, 424, 434, 438).
The comments of the U.S. West Company (Ex. 15:184) are representative
of these views:
U S WEST strongly supports provisions in the proposed rule that
allow ``equivalent'' forms instead of the OSHA Forms 300 and 301. U
S WEST also supports the provisions that would allow use of data
processing equipment and computer printouts of equivalent forms.
These provisions allow employers considerable flexibility and
greatly reduced paperwork burdens and costs, especially for larger
multi-site employers.
Accordingly, paragraphs 1904.29(b)(4) and (b)(5) of the final rule
make clear that employers are permitted to record the required
information on electronic media or on paper forms that are different
from the OSHA 300 Log, provided that the electronic record or paper
forms are equivalent to the OSHA 300 Log. A form is deemed to be
``equivalent'' to the OSHA 300 Log if it can be read and understood as
easily as the OSHA form and contains at least as much information as
the OSHA 300 Log. In addition, the equivalent form must be completed in
accordance with the instructions used to complete the OSHA 300 Log.
These provisions are intended to balance OSHA's obligation, as set
forth in Section 8(d) of the OSH Act, to reduce information collection
burdens on employers as much as possible, on the one hand, with the
need, on the other hand, to maintain uniformity of the data recorded
and provide employers flexibility in meeting OSHA's recordkeeping
requirements. These provisions also help to achieve one of OSHA's goals
for this rulemaking: to allow employers to take full advantage of
modern technology and computers to meet their OSHA recordkeeping
obligations.
Several commenters were concerned that computerized records would
make it more difficult for employees to access the records (see, e.g.,
Exs. 15:379, 380, 418, 438). Representative of these views is a comment
from the United Auto Workers (UAW):
Electronic data collection is an essential step to moving
forward, especially regarding data analysis for large worksites.
However, as it works today electronic collection can also be an
obstacle to prompt availability to persons without direct access to
the computer system. For this reason, OSHA should require the
availability of electronic information to employees and employee
representatives in the same time interval as hard copy information,
regardless of whether the computer system is maintained at the site
(Ex. 15: 438).
OSHA does not believe that computerization of the records will
compromise timely employee, employer or government representative
access to the records. To ensure that this is the case, paragraph
Sec. 1904.29(b)(5) of the final rule allows the employer to keep
records on computer equipment only if the computer system can produce
paper copies of equivalent forms when access to them is needed by a
government representative, an employee or former employee, or an
employee representative, as required by Secs. 1904.35 or 1904.40,
respectively. Of course, if the employee requesting access to the
information agrees to receive it by e-mail, this is acceptable under
the 1904 rule.
OSHA also proposed specifically to require that, on any equivalent
form, three of the questions on the form asking for details of the
injury or illness
[[Page 6024]]
(proposed questions 16, 17, and 18) be positioned on the form in the
same order and be phrased in identical language to that used on the
OSHA 301 Incident Report. The three questions were all designed to
obtain more detailed information about how the injury or illness
occurred, what equipment or materials the employee was using at the
time of the injury or illness, and the activity the employee was
engaged in at the time of the injury or illness.
A number of commenters objected to the proposed requirement that,
on any equivalent form, these three questions be asked in the same
order and be phrased in the same language as on the OSHA Incident
Report (see, e.g., Exs. 33; 37; 15: 9, 41, 44, 59, 60, 119, 132, 156,
176, 201, 231, 281, 283, 301, 312, 318, 322, 329, 334, 335, 346). In
addition to arguing that such a requirement would be burdensome and
prescriptive, these commenters pointed out that the proposed OSHA
recordkeeping form was not identical to many State workers'
compensation forms (the forms most often used as alternatives to the
OSHA forms), which would mean that employers in these States would, in
effect, be forced to use the OSHA forms (Ex. 15: 334). Other commenters
argued that being required to use a certain format would hamper
employers' internal accident investigations (see, e.g., Exs. 15: 44,
176, 322). For example, the Kodak Company remarked:
In [proposed] section 1904.5(b)(2)--``Questions 16, 17 & 18 must
be asked in the same order and using identical language from the
Form 301.'' Companies, like Kodak, have well established techniques
to ascertain the cause of the injury and illness. This requirement
would actually hamper our ability to find the root cause of an
accident. This requirement should be eliminated from the rule. (Ex.
15: 322)
The final rule does not include a requirement that certain
questions on an equivalent form be asked in the same order and be
phrased in language identical to that used on the OSHA 301 form.
Instead, OSHA has decided, based on a review of the record evidence,
that employers may use any substitute form that contains the same
information and follows the same recording directions as the OSHA 301
form, and the final rule clearly allows this. Although the consistency
of the data on the OSHA 301 form might be improved somewhat if the
questions asking for further details were phrased and positioned in an
identical way on all employers' forms, OSHA has concluded that the
additional burden such a requirement would impose on employers and
workers' compensation agencies outweighs this consideration.
OSHA has revised the wording of these three questions on the final
OSHA 301 form to match the phraseology used by the Bureau of Labor
Statistics (BLS) in its Annual Survey of Occupational Injuries and
Illnesses. By ensuring consistency across both the BLS and OSHA forms,
this change will help those employers who respond both to the BLS
Annual Survey and keep OSHA records.
Handling of Privacy Concern Cases
Paragraphs 1904.29(b)(6) through (b)(10) of the final rule are new
and are designed to address privacy concerns raised by many commenters
to the record. Paragraph 1904.29(b)(6) requires the employer to
withhold the injured or ill employee's name from the OSHA 300 Log for
injuries and illnesses defined by the rule as ``privacy concern cases''
and instead to enter ``privacy concern case'' in the space where the
employee's name would normally be entered if an injury or illness
meeting the definition of a privacy concern case occurs. This approach
will allow the employer to provide OSHA 300 Log data to employees,
former employees and employee representatives, as required by
Sec. 1904.35, while at the same time protecting the privacy of workers
who have experienced occupational injuries and illnesses that raise
privacy concerns. The employer must also keep a separate, confidential
list of these privacy concern cases, and the list must include the
employee's name and the case number from the OSHA 300 Log. This
separate listing is needed to allow a government representative to
obtain the employee's name during a workplace inspection in case
further investigation is warranted and to assist employers to keep
track of such cases in the event that future revisions to the entry
become necessary.
Paragraph 1904.29(b)(7) defines ``privacy concern cases'' as those
involving: (i) An injury or illness to an intimate body part or the
reproductive system; (ii) an injury or illness resulting from a sexual
assault; (iii) a mental illness; (iv) a work-related HIV infection,
hepatitis case, or tuberculosis case; (v) needlestick injuries and cuts
from sharp objects that are contaminated with another person's blood or
other potentially infectious material, or (vi) any other illness, if
the employee independently and voluntarily requests that his or her
name not be entered on the log. Paragraph 1904.29(b)(8) establishes
that these are the only types of occupational injuries and illnesses
that the employer may consider privacy concern cases for recordkeeping
purposes.
Paragraph 1904.29(b)(9) permits employers discretion in recording
case information if the employer believes that doing so could
compromise the privacy of the employee's identity, even though the
employee's name has not been entered. This clause has been added
because OSHA recognizes that, for specific situations, coworkers who
are allowed to access the log may be able to deduce the identity of the
injured or ill worker and obtain innapropriate knowledge of a privacy-
sensitive injury or illness. OSHA believes that these situations are
relatively infrequent, but still exist. For example, if knowing the
department in which the employee works would inadvertently divulge the
person's identity, or recording the gender of the injured employee
would identifying that person (because, for example, only one woman
works at the plant), the employer has discretion to mask or withhold
this information both on the Log and Incident Report.
The rule requires the employer to enter enough information to
identify the cause of the incident and the general severity of the
injury or illness, but allows the employer to exclude details of an
intimate or private nature. The rule includes two examples; a sexual
assault case could be described simply as ``injury from assault,'' or
an injury to a reproductive organ could be described as ``lower
abdominal injury.'' Likewise, a work-related diagnosis of post
traumatic stress disorder could be described as ``emotional
difficulty.'' Reproductive disorders, certain cancers, contagious
diseases and other disorders that are intimate and private in nature
may also be described in a general way to avoid privacy concerns. This
allows the employer to avoid overly graphic descriptions that may be
offensive, without sacrificing the descriptive value of the recorded
information.
Paragraph 1904.29(b)(10) protects employee privacy if the employer
decides voluntarily to disclose the OSHA 300 and 301 forms to persons
other than those who have a mandatory right of access under the final
rule. The paragraph requires the employer to remove or hide employees'
names or other personally identifying information before disclosing the
forms to persons other than government representatives, employees,
former employees or authorized representatives, as required by
paragraphs 1904.40 and 1904.35, except in three cases. The employer may
disclose the forms, complete with personally identifying information,
(2) only: (i) to an auditor or consultant
[[Page 6025]]
hired by the employer to evaluate the safety and health program; (ii)
to the extent necessary for processing a claim for workers'
compensation or other insurance benefits; or (iii) to a public health
authority or law enforcement agency for uses and disclosures for which
consent , an authorization, or opportunity to agree or object is not
required under section 164.512 of the final rule on Standards for
Privacy of Individually Identifiable Health Information, 45 CFR
164.512.
These requirements have been included in Sec. 1904.29 rather than
in Sec. 1904.35, which establishes requirements for records access,
because waiting until access is requested to remove identifying
information from the OSHA 300 Log could unwittingly compromise the
injured or ill worker's privacy and result in unnecessary delays. The
final rule's overall approach to handling privacy issues is discussed
more fully in the preamble discussion of the employee access provisions
in Sec. 1904.35.
The Treatment of Occupational Illness and Injury Data on the Forms
The treatment of occupational injury and illness data on the OSHA
forms is a key issue in this rulemaking. Although the forms themselves
are not printed in the Code of Federal Regulations (CFR), they are the
method OSHA's recordkeeping regulation uses to meet the Agency's goal
of tracking and reporting occupational injury and illness data. As
such, the forms are a central component of the recordkeeping system and
mirror the requirements of the Part 1904 regulation. The final Part
1904 rule requires employers to use three forms to track occupational
injuries and illnesses: the OSHA 300, 300A, and 301 forms, which
replace the OSHA 200 and 101 forms called for under the former
recordkeeping rule, as follows:
1. The OSHA Form 300, Log of Work-Related Injuries and Illnesses,
replaces the Log portion of the former OSHA Form 200 Log and Summary of
Occupational Injuries and Illnesses. The OSHA 300 Log contains space
for a description of the establishment name, city and state, followed
by a one-line space for the entry for each recordable injury and
illness.
2. The OSHA Form 300A, Summary of Work-Related Injuries and
Illnesses, replaces the Summary portion of the former OSHA Form 200 Log
and Summary of Occupational Injuries and Illnesses. The Form 300A is
used to summarize the entries from the Form 300 Log at the end of the
year and is then posted from February 1 through April 30 of the
following year so that employees can be aware of the occupational
injury and illness experience of the establishment in which they work.
The form contains space for entries for each of the columns from the
Form 300, along with information about the establishment, and the
average number of employees who worked there the previous year, and the
recordkeeper's and corporate officer's certification of the accuracy of
the data recorded on the summary. (These requirements are addressed
further in Section 1904.32 of the final rule and its associated
preamble.)
3. The OSHA Form 301, Injury and Illness Report, replaces the
former OSHA 101 Form. Covered employers are required to fill out a one-
page form for each injury and illness recorded on the Form 300. The
form contains space for more detailed information about the injured or
ill employee, the physician or other health care professional who cared
for the employee (if medical treatment was necessary), the treatment
(if any) of the employee at an emergency room or hospital, and
descriptive information telling what the employee was doing when
injured or ill, how the incident occurred, the specific details of the
injury or illness, and the object or substance that harmed the
employee. (Most employers use a workers' compensation form as a
replacement for the OSHA 301 Incident Report.)
The use of a three-form system for recordkeeping is not a new
concept. The OSHA recordkeeping system used a separate summary form
from 1972 to 1977, when the Log and Summary forms were combined into
the former OSHA Form 200 (42 FR 65165). OSHA has decided that the
three-form system (the 300 Log, the 300A summary, and the 301 Incident
Report) has several advantages. First, it provides space for more cases
to be entered on the Log but keeps the Log to a manageable size.
Second, it helps to ensure that an injured or ill employee's name is
not posted in a public place. When the forms were combined in 1977 into
a single form, employers occasionally neglected to shield an employee's
name on the final sheet of the 200 Log, even though the annual summary
form was designed to mask personal identifiers. The use of a separate
300A summary form precludes this possibility. Third, the use of a
separate summary form (the final rule's Form 300A) allows the data to
be posted in a user-friendly format that will be easy for employees and
employers to use. Fourth, a separate 300A Form provides extra space for
information about an employee's right to access the Log, information
about the establishment and its employees, and the dual certifications
required by Sec. 1904.32 of the rule. Finally, a separate 300A Form
makes it easier to attach to the reverse side of the form worksheets
that are designed to help the employer calculate the average number of
employees and hours worked by all employees during the year.
The majority of the changes to the final forms (compared with the
forms used with the former rule and the proposed forms) have been made
to reflect the requirements of the final rule and are needed to align
the forms with the final regulatory requirements. All of the other
changes to the forms reflect formatting and editorial changes made to
simplify the forms, make them easier to understand and complete, and
facilitate use of the data. The forms have been incorporated into an
information package that provides individual employers with several
copies of the OSHA 300, 300A, and 301 forms; general instructions for
filling out the forms and definitions of key terms; an example showing
how to fill out the 300 Log; a worksheet to assist employers in
computing the average number of employees and the total number of hours
worked by employees at the establishment in the previous year; a non-
mandatory worksheet to help the employer compute an occupational injury
and illness rate; and instructions telling an employer how to get
additional help by (1) accessing the OSHA Internet home page, or (2) by
calling the appropriate Federal OSHA regional office or the OSHA
approved State-Plan with jurisdiction. The package is included in final
rule Section VI, Forms, later in this preamble.
The Size of the OSHA Recordkeeping Forms
The OSHA recordkeeping forms required by the final Part 1904
recordkeeping rule are printed on legal size paper (81/2" x 14"). The
former rule's Log was an 11 by 17-inch form, the equivalent of two
standard 81/2 by 11-inch pages. The former 200 Log was criticized
because it was unwieldy to copy and file and contained 12 columns for
recording occupational injury and occupational illness cases. The
proposed OSHA 300 Log and Summary would have fit on a single 81/2 by
11-inch sheet of paper (61 FR 4050), a change that would have been made
possible by the proposed elimination of redundancies on the former 200
Log and of certain data elements that provided counts of restricted
workdays and separate data on occupational injury and illness cases.
The proposed OSHA 300 Form was favorably received by a
[[Page 6026]]
large number of commenters (see, e.g., Exs. 19, 44, 15: 48, 157, 246,
307, 347, 351, 373, 374, 378, 384, 391, 395, 396, 427, 434, 441, 443).
For example, the National Association of Plumbing-Heating-Cooling
Contractors (NAPHCC) stated:
NAPHCC applauds the Agency's efforts to simplify the Injury and
Illness Log and Summary in the form of a new Form 300 and Form 301.
Employers will be more comfortable with the one-page forms--they
appear less ominous than the oversized 200 Form and therefore have a
better chance of being completed in a timely and accurate manner
(Ex. 15: 443, p. 6).
A number of commenters were concerned that proposed the 300 form
would fail to capture important data and argued that the former Log
should be retained (see, e.g., Exs. 15:15, 47, 283, 369, 429, 438). The
primary argument of this group of commenters was that the size of the
form should not determine which data elements were included on the Log
and which were not. The comment of the International Union, United
Automobile, Aerospace & Agricultural Implement Workers of America--UAW
summed up this position: ``The UAW uses this data on a yearly basis
when it becomes available at the national level, and on a daily basis
at the plant level. Compared to the value of the summary data and data
series, the goal of reducing the size of the form to something easily
Xeroxed is silly'' (Ex. 15: 438, p. 2). The International Brotherhood
of Teamsters commented ``OSHA believes the change results in a
simplified form that fits on a standard sheet of paper that can be
easily copied and kept on a personal computer. * * * The storage
capacity of an additional page in a personal computer is hardly
burdensome. The amount of information that can be collected should
always be need based, and never be limited to what an 81/2" x 11"
sheet of paper can hold'' (Ex. 15: 369, p. 49).
OSHA agrees that the proposed Log would have resulted in a
significant loss of useful data and has therefore maintained several
data fields on the final OSHA 300 Log to capture counts of restricted
work days and collect separate data on occupational injuries and
several types of occupational illness. However, there is a limit to the
information that can be collected by any one form. OSHA wishes to
continue to make it possible for those employers, especially smaller
employers, who wish to keep records in paper form to do so. It is also
important that the Log be user-friendly, easily copied and filed, and
otherwise manageable. Although a form 81/2 x 11 inches in size would
be even easier to manage, OSHA has concluded that a form of that size
is too small to accommodate the data fields required for complete and
accurate reporting.
Accordingly, OSHA has redesigned the OSHA 300 Log to fit on a legal
size (81/2 x 14 inches) piece of paper and to clarify that employers
may use two lines to enter a case if the information does not fit
easily on one line. The OSHA forms 300A and 301, and the remainder of
the recordkeeping package, have also been designed to fit on the same-
size paper as the OSHA 300 Log. For those employers who use
computerized systems (where handwriting space is not as important)
equivalent computer-generated forms can be printed out on 81/2 x 11
sheets of paper if the printed copies are legible and are as readable
as the OSHA forms.
Commenters raised four major issues concerning the OSHA 300 Log:
(1) Defining lost workdays (discussed below); (2) collecting separate
data on occupational injury and occupational illness (discussed below);
(3) collecting separate data on musculoskeletal disorders (discussed
below and in the summary and explanation associated with Sec. 1904.12;
and (4) recurrences (discussed in the summary and explanation
associated with Sec. 1904.6, Determination of new cases). In addition,
commenters raised numerous minor issues concerning the 300 Log data
elements and forms design; these are discussed later in this section.
Defining Lost Workdays
OSHA proposed to eliminate the term ``lost workdays,'' by replacing
it with ``days away from work'' (61 FR 4033). The OSHA recordkeeping
system has historically defined lost workdays as including both days
away from work and days of restricted work activity, and the
Recordkeeping Guidelines discussed how to properly record lost workday
cases with days away from work and lost workday cases with days of
restricted work activity (Ex. 2, p. 47, 48). However, many use the term
``lost workday'' in a manner that is synonymous with ``day away from
work,'' and the term has been used inconsistently for many years. Many
commenters on the proposal agreed that the term ``lost workday'' should
be deleted from the forms and the recordkeeping system because of this
confusion (see, e.g., Exs. 33; 37; 15: 9, 26, 69, 70, 105, 107, 136,
137, 141, 146, 176, 184, 204, 224, 231, 266, 271, 272, 273, 278, 281,
287, 288, 301, 303, 305, 347, 384, 414, 428). The Akzo Nobel Chemicals
Company (Ex. 37) simply commented ``[a] big ATTA BOY for removing
restricted work cases from under the lost time umbrella. They never
really belonged there.'' William K. Principe of the law firm of
Constangy, Brooks & Smith, LLC, stated that:
The elimination of the term ``lost work days'' is a good idea,
because its use under the existing recordkeeping regulations has
been confusing. Recordkeepers have equated ``lost work days'' with
``days away from work,'' but have not thought that ``lost work
days'' included days of ``restricted work activity.'' Thus, the
elimination of ``lost work days'' will result in more understandable
terminology.
The Hoffman-La Roche, Inc. company agreed with OSHA's proposal to
eliminate the term lost workdays from the system, stating that ``[t]he
term ``lost workdays'' is confusing and does not clearly define whether
the case involved days away from work or restricted days. However, the
term ``lost workday case'' still has a place in defining a case that
has either days away from work or restricted days.'' The Jewel Coal and
Coke Company (Ex. 15: 281) remarked that:
[w]e believe that the listing of restricted work injuries/
illnesses has its purpose as to the consideration of the seriousness
of the injury or illness. However, we believe that restricted work
duty injuries/illnesses should be placed in a separate category from
days away from work and should not be considered as serious as
accidents with days away from work but are in fact more serious than
first Aid cases or other medically reportable cases. We believe that
the listing of the date of return of the employee to full work
activities may very well have it's place on the OSHA Form 301 or
other supplemental forms.
In the final rule, OSHA has eliminated the term ``lost workdays''
on the forms and in the regulatory text. The use of the term has been
confusing for many years because many people equated the terms ``lost
workday'' with ``days away from work'' and failed to recognize that the
former OSHA term included restricted days. OSHA finds that deleting
this term from the final rule and the forms will improve clarity and
the consistency of the data.
The 300 Log has four check boxes to be used to classify the case:
death, day(s) away from work, days of restricted work or job transfer;
and case meeting other recording criteria. The employer must check the
single box that reflects the most severe outcome associated with a
given injury or illness. Thus, for an injury or illness where the
injured worker first stayed home to recuperate and then was assigned to
restricted work for several days, the employer is required only to
check the box for days away from work (column I). For a case with only
job transfer or restriction, the employer must check the
[[Page 6027]]
box for days of restricted work or job transfer (Column H). However,
the final Log still allows employers to calculate the incidence rate
formerly referred to as a ``lost workday injury and illness rate''
despite the fact that it separates the data formerly captured under
this heading into two separate categories. Because the OSHA Form 300
has separate check boxes for days away from work cases and cases where
the employee remained at work but was temporarily transferred to
another job or assigned to restricted duty, it is easy to add the
totals from these two columns together to obtain a single total to use
in calculating an injury and illness incidence rate for total days away
from work and restricted work cases.
Counting Days of Restricted Work or Job Transfer
Although the final rule does not use the term ``lost workday''
(which formerly applied both to days away from work and days of
restricted or transferred work), the rule continues OSHA's longstanding
practice of requiring employers to keep track of the number of days on
which an employee is placed on restricted work or is on job transfer
because of an injury or illness. OSHA proposed to eliminate the
counting of the number of days of restricted work from the proposed 300
Log (61 FR 4046). The proposal also asked whether the elimination of
the restricted work day count would provide an incentive for employers
to temporarily assign injured or ill workers to jobs with little or no
productive value to avoid recording a case as one involving days away
from work (61 FR 4046).
A large number of commenters supported OSHA's proposal to eliminate
the counting of restricted work days (see, e.g., Exs. 21; 26; 27; 28;
33; 37; 51; 15: 9, 19, 26, 39, 44, 60, 65, 67, 69, 70, 76, 79, 82, 83,
85, 87, 100, 105, 107, 111, 119, 121, 123, 136, 137, 141, 145, 146,
154, 156, 159, 170, 171, 173, 176, 184, 188, 194, 199, 203, 204, 205,
218, 224, 225, 229, 230, 231, 234, 235, 239, 246, 247, 260, 262, 265,
266, 271, 272, 273, 278, 281, 283, 287, 288, 289, 298, 301, 303, 304,
305, 307, 317, 321, 332, 334, 336, 337, 341, 345, 346, 347, 351, 364,
368, 373, 384, 390, 391, 392, 401, 405, 409, 413, 414, 423, 424, 426,
427, 428, 430, 434, 437, 440, 442). For example, the Union Carbide
Corporation (Ex. 15: 391) argued that their:
[e]xperience with tracking lost or restricted workdays the way
it is being done today indicates that it is fruitless. The interest
is in the number of lost workday or restricted workday cases with
only minor attention being given to the number of days involved.
Elimination of the term ``lost workdays'' in regard to restricted
workdays would surely be a step in the direction of simplicity and
focus. The severity of an injury/illness is more clearly indicated
by the number of days away from work than by any other means. The
inclusion of cases involving restricted work only clouds the issue.
The Monsanto Corporation (Ex. 28) urged the Agency to do away with
all day counts, noting that Monsanto:
[u]ses the recordable case as the basis of our performance
measurement system. We measure the number of days away and
restricted but rarely look at them. We agree that OSHA should
eliminate the number of days of restricted work from the
requirements but we would also delete the number of days away as
well. While the number of days are some measure of ``severity'', we
think a better and simpler measure is just the cases rate for
fatalities and/or days away cases.
The commenters who argued for eliminating the counting of
restricted workdays offered several reasons: (1) Doing away with the
counting would simplify the recordkeeping system and reduce burden on
employers (see, e.g., Exs. 33; 15: 69, 105, 136, 137, 141, 146, 156,
176, 184, 188, 203, 224, 231, 239, 266, 272, 273, 278, 288, 289, 301,
303, 304, 336, 337, 345, 346, 347, 390, 391, 409, 424, 426, 428, 430,
442); (2) eliminating the day counts would make it easier to
computerize the records (see, e.g., Exs. 15: 136, 137, 141, 224, 266,
278); (3) limiting counts of restricted work would match workers'
compensation insurance requirements, which typically count only days
away from work (see, e.g., Exs. 15: 225, 336); (4) counts of restricted
work have little or no value (see, e.g., Exs. 21; 15: 65, 105, 119,
154, 170, 203, 205, 235, 260, 262, 265, 332, 347, 391, 401, 405, 409,
430); (5) restricted workday counts are not used in safety and health
programs and their evaluation (see, e.g., Exs. 15: 65, 119, 154, 159,
194, 239, 271, 347, 409, 426, 428); (6) restricted workday counts are
not a good measure of injury and illness severity (see, e.g., Exs. 15:
336, 345); and (7) restricted workday counts are not a uniform or
consistent measure (see, e.g., Exs. 15: 235, 288, 289, 347, 409, 442).
For example, the National Grain and Feed Association (Ex. 15: 119)
argued that ``[t]here is no evidence that the current restricted work
activity day counts are being used in safety and health programs and
there is no purpose in continuing the restricted work activity count
requirement.'' The Tennessee Valley Authority (Ex. 15: 235) argued that
``[o]nly days away from work or death should be recorded on the 300
log. Recording of restricted work-day cases is difficult to
consistently record, thereby, not providing a good data base for
comparison.''
However, a number of commenters opposed the proposal to eliminate
the counting of restricted days (see, e.g., Exs. 35; 15: 31, 34, 41,
61, 72, 74, 181, 186, 281, 310, 350, 359, 369, 371, 380, 438). For
example, Linda Ballas & Associates (Ex. 15: 31) argued that:
[r]estricted work days should be counted. A restricted case with
1 restricted day would be less severe than a restricted work case
with 30 days. The elimination of the restricted work activity day
count will provide an incentive for employers to temporarily assign
injured or ill workers to jobs with little or no productive value to
avoid recording a case as one involving days away from work.* * *
Most of these commenters argued that restricted work day data are
needed to gauge the severity of an occupational injury or illness (see,
e.g., Exs. 15: 31, 34, 41, 181, 186, 310, 369, 371, 438) or that such
data are a measure of lost productivity (see, e.g., Exs. 15: 41, 61,
281). The American Association of Occupational Health Nurses stated
that ``[O]SHA should be aware that modifications to recording
restricted work days will result in the loss of valuable information
related to the severity of the injuries/illnesses.'' The Jewel Coal and
Coke Company (Ex. 15: 281) stated that:
We believe that the listing of restricted work injuries/
illnesses has its purpose as to the consideration of the seriousness
of the injury or illness. However, we believe that restricted work
duty injuries/illnesses should be placed in a separate category from
days away from work and should not be considered as serious as
accidents with days away from work but are in fact more serious than
first Aid cases or other medically reportable cases.* * *
The North Carolina Department of Labor (Ex. 15: 186) recommended
that:
[r]estricted work day counts as well as lost work day counts can
be measures of the severity of individual illnesses/injuries. In
addition through trend analysis lost work day rates and restricted
work day rates may be calculated by job, department, etc. to
identify higher risk jobs, departments, etc. and/or measure the
effectiveness of interventions and progress in the development of a
comprehensive ergonomics program.
As to OSHA's question in the proposal about the incentive for
employers to offer restricted work to employee's in order to avoid
recording a case with days away from work, a number of commenters
questioned whether such an incentive exists (see, e.g., Exs. 15: 13,
26, 27, 39, 79, 136, 137, 141, 156, 181, 199, 218, 224, 229, 242, 263,
266, 269, 270, 278, 283, 341, 364, 377, 409, 426, 434, 440). For
example,
[[Page 6028]]
the United Technologies Company (UTC) stated that ``[U]TC does not
believe that the recording or not recording of restricted days will
influence management's decision to temporarily assign employees to
restricted work. The decision to place an employee on restricted work
is driven by workers' compensation costs rather than OSHA incidence
rates'' (Ex. 15: 440). The American Textile Manufacturers Association
(ATMI) agreed:
[A]TMI believes that this will not provide an incentive for
employers to temporarily assign injured or ill workers to jobs with
little or no productive value to avoid recording a case as one
involving days away from work. The restricted work activity day
count is in no way related to an employer wanting to avoid having
days away from work. Workers' compensation claims and, for the most
part, company safety awards are based on the number of ``lost-time
accidents.'' The counting of restricted work days has never been an
incentive or disincentive for these two key employer safety measures
and ATMI believes that this will not change. (Ex. 15: 156)
Other commenters, however, believed there could be incentive
effects (see, e.g., Exs. 15: 13, 31, 74, 111, 359, 369).
In the final rule, OSHA has decided to require employers to record
the number of days of restriction or transfer on the OSHA 300 Log. From
the comments received, and based on OSHA's own experience, the Agency
finds that counts of restricted days are a useful and needed measure of
injury and illness severity. OSHA's decision to require the recording
of restricted and transferred work cases on the Log was also influenced
by the trend toward restricted work and away from days away from work.
In a recent article, the BLS noted that occupational injuries and
illnesses are more likely to result in days of restricted work than was
the case in the past. From 1978 to 1986, the annual rate in private
industry for cases involving only restricted work remained constant, at
0.3 cases per 100 full-time workers. Since 1986, the rate has risen
steadily to 1.2 cases per 100 workers in 1997, a fourfold increase. At
the same time, cases with days away from work declined from 3.3 in 1986
to 2.1 in 1997 (Monthly Labor Review, June 1999, Vol. 122. No. 6, pp.
11-17). It is clear that employers have caused this shift by modifying
their return-to-work policies and offering more restricted work
opportunities to injured or ill employees. Therefore, in order to get
an accurate picture of the extent of occupational injuries and
illnesses, it is necessary for the OSHA Log to capture counts of days
away from work and days of job transfer or restriction.
The final rule thus carries forward OSHA's longstanding requirement
for employers to count and record the number of restricted days on the
OSHA Log. On the Log, restricted work counts are separated from days
away from work counts, and the term ``lost workday'' is no longer used.
OSHA believes that the burden on employers of counting these days will
be reduced somewhat by the simplified definition of restricted work,
the counting of calendar days rather than work days, capping of the
counts at 180 days, and allowing the employer to stop counting
restricted days when the employees job has been permanently modified to
eliminate the routine job functions being restricted (see the preamble
discussion for 1904.7 General Recording Criteria).
Separate 300 Log Data on Occupational Injury and Occupational Illness
OSHA proposed (61 FR 4036-4037) to eliminate any differences in the
way occupational injuries, as opposed to occupational illnesses, were
recorded on the forms. The proposed approach would not, as many
commenters believed, have made it impossible to determine the types and
number of cases of occupational illnesses at the aggregated national
level, although it would have eliminated the distinction between
injuries and illnesses at the individual establishment level. In other
words, the proposed approach would have involved a coding system that
the BLS could use to project the incidences of several types of
occupational illnesses nationally, but would not have permitted
individual employers to calculate the incidence of illness cases at
their establishments.
Many commenters reacted with concern to the proposal to eliminate,
for recording purposes, the distinction between occupational injuries
and occupational illnesses, and to delete the columns on the Log used
to record specific categories of illnesses (see, e.g., Exs. 15: 213,
288, 359, 369, 407, 418, 429, 438). For example, Con Edison stated that
``Distinguishing between injuries and illness is a fundamental and
essential part of recordkeeping'' (Ex. 15: 21), and the National
Institute for Occupational Safety and Health (NIOSH) discussed the
potentially detrimental effects on the Nation's occupational injury and
illness statistics of such a move, stating ``For occupational health
surveillance purposes * * * NIOSH recommends that entries on the OSHA
log continue to be categorized separately as illnesses and injuries''
(Ex. 15: 407).
Many commenters also criticized OSHA's proposal to delete from the
Log the separate columns for 7 categories of occupational illnesses
(see, e.g., Exs. 20, 35, 15: 27, 283, 371). These commenters pointed
out that these categories of illnesses have been part of the
recordkeeping system for many years and that they captured data on
illness cases in 7 categories: occupational skin diseases or disorders,
dust diseases of the lungs, respiratory conditions due to toxic agents,
poisoning (systemic effects of toxic materials), disorders due to
physical agents, disorders associated with repeated trauma, and all
other occupational illnesses. Typical of the views of commenters
concerned about the proposal to delete these columns from the Log was
the comment of the United Auto Workers: ``OSHA should abandon the plan
to change the OSHA 200 form to eliminate illness categories. The
illness categories in the summary presently provide critically
necessary information about cumulative trauma disorders, and useful
information about respiratory conditions'' (Ex: 15: 348).
Several commenters supported the proposed concept of adding a
single column to the form on which employers would enter illness codes
that would correspond to the illness conditions listed in proposed
Appendix B, which could then be decoded by government classifiers to
project national illness incidence rates for coded conditions (see,
e.g., Exs. 20, 15: 27, 369, 371). For example, the United Brotherhood
of Carpenters and Joiners of America stated:
The UBC would recommend [that].* * * A column should be added
for an identification code for recordable conditions from Appendix
B. (Eg. 1 = hearings loss, 2 = CTD's. 3 = blood lead. Etc.) (Ex.
20).
After a thorough review of the comments in the record, however,
OSHA has concluded that the proposed approach, which would have
eliminated, for recording purposes, the distinction between work-
related injuries and illnesses, is not workable in the final rule. The
Agency finds that there is a continuing need for separately
identifiable information on occupational illnesses and injuries, as
well as on certain specific categories of occupational illnesses. The
published BLS statistics have included separate estimates of the rate
and number of occupational injuries and illnesses for many years, as
well as the rate and number of different types of occupational
illnesses, and employers, employees, the government, and the public
have found this information useful and worthwhile. Separate illness
[[Page 6029]]
and injury data are particularly useful at the establishment level,
where employers and employees can use them to evaluate the
establishment's health experience and compare it to the national
experience or to the experience of other employers in their industry or
their own prior experience. The data are also useful to OSHA personnel
performing worksite inspections, who can use this information to
identify potential health hazards at the establishment.
Under the final rule, the OSHA 300 form has therefore been modified
specifically to collect information on five types of occupational
health conditions: musculoskeletal disorders, skin diseases or
disorders, respiratory conditions, poisoning, and hearing loss. There
is also an ``all other illness'' column on the Log. To record cases
falling into one of these categories, the employer simply enters a
check mark in the appropriate column, which will allow these cases to
be separately counted to generate establishment-level summary
information at the end of the year.
OSHA rejected the option suggested by the UBC and others (see,
e.g., Exs. 20, 15: 27, 369, 371)--to add a single column that would
include a code for different types of conditions--because such an
approach could require employers to scan and separately tally entries
from the column to determine the total number of each kind of illness
case, an additional step that OSHA believes would be unduly burdensome.
Because the scanning and tallying are complex, this approach also would
be likely to result in computational errors.
In the final rule, two of the illness case columns on the OSHA 300
Log are identical to those on the former OSHA Log: a column to capture
cases of skin diseases or disorders and one to capture cases of
systemic poisoning. The single column for respiratory conditions on the
new OSHA Form 300 will capture data on respiratory conditions that were
formerly captured in two separate columns, i.e., the columns for
respiratory conditions due to toxic agents (formerly column 7c) and for
dust diseases of the lungs (formerly column 7b). Column 7g of the
former OSHA Log provided space for data on all other occupational
illnesses, and that column has also been continued on the new OSHA 300
Log. On the other hand, column 7e from the former OSHA Log, which
captured cases of disorders due to physical agents, is not included on
the new OSHA Log form. The cases recorded in former column 7e primarily
addressed heat and cold disorders, such as heat stroke and hypothermia;
hyperbaric effects, such as caisson disease; and the effects of
radiation, including occupational illnesses caused by x-ray exposure,
sun exposure and welder's flash. Because space on the form is at a
premium, and because column 7e was not used extensively in the past
(recorded column 7e cases accounted only for approximately five percent
of all occupational illness cases), OSHA has not continued this column
on the new OSHA 300 Log.
OSHA has, however, added a new column specifically to capture
hearing loss cases on the OSHA 300 Log. The former Log included a
column devoted to repeated trauma cases, which were defined as
including noise-induced hearing loss cases as well as cases involving a
variety of other conditions, including certain musculoskeletal
disorders. Several commenters recommended that separate data be
collected on hearing loss (see, e.g., Exs. 20, 53X, p.76, 15: 31).
Dedicating a column to occupational hearing loss cases will provide a
valuable new source of information on this prevalent and often
disabling condition. Although precise estimates of the number of noise-
exposed workers vary widely by industry and the definition of noise
dose used, the EPA estimated in 1981 that about 9 million workers in
the manufacturing sector alone were occupationally exposed to noise
levels above 85 dBA. Recent risk estimates suggest that exposure to
this level of noise over a working lifetime would cause material
hearing impairment in about 9 percent, or approximately 720,000, U.S.
workers (NIOSH, 1998). A separate column for occupational hearing loss
is also appropriate because the BLS occupational injury and illness
statistics only report detailed injury characteristics information for
those illness cases that result in days away from work. Because most
hearing loss cases do not result in time off the job, the extent of
occupational hearing loss has not previously been accurately reflected
in the national statistics. By creating a separate column for
occupational hearing loss cases, and clearly articulating in section
1904.10 of the final rule the level of hearing loss that must be
recorded, OSHA believes that the recordkeeping system will, in the
future, provide accurate estimates of the incidence of work-related
loss of hearing among America's workers.
Column on the Log for Musculoskeletal Disorders
Column 7f of the former Log also was intended to capture cases
involving repetitive motion conditions, such as carpal tunnel syndrome,
tendinitis, etc. These conditions have been called by many names,
including repetitive stress injuries, cumulative trauma disorders, and
overuse injuries. OSHA has decided to include a separate column on the
Log for musculoskeletal disorders (MSDs), the preferred term for
injuries and illnesses of the muscles, nerves, tendons, ligaments,
joints, cartilage and spinal discs, including those of the upper
extremities, lower extremities, and back. Many MSDs are caused by
workplace risk factors, such as lifting, repetitive motion, vibration,
overexertion, contact stress, awkward or static postures, and/or
excessive force. The repeated trauma column on the former OSHA Log did
not permit an accurate count of musculoskeletal disorders, both because
other conditions, such as occupational hearing loss, were included in
the definition of repeated trauma and because many musculoskeletal
disorders--including lower back injuries--were excluded. The column was
limited to disorders classified as illnesses, but OSHA instructed
employers to record all back cases as injuries rather than illnesses,
even though back disorders are frequently associated with exposure to
occupational stresses over time (Ex. 2, p. 38).
In its proposal, OSHA asked for comment on the need for a separate
column containing information on musculoskeletal disorder (MSD) cases
such as low back pain, tendinitis and carpal tunnel syndrome. OSHA
received numerous comments opposing the addition of an MSD column to
the Log (see, e.g., Exs. 15: 9, 60, 78, 105, 122, 136, 137, 141, 201,
218, 221, 224, 266, 278, 305, 308, 318, 346, 395, 397, 406, 414, 430).
These commenters objected on several grounds: because they believed
that including such a column would make the forms more complex (Ex. 15:
414), because the column would have ``no utility'' (Ex. 15: 397), or
because the column would only capture a small percentage of total MSD
cases (Ex. 15: 210). Several commenters objected because they believed
that an MSD column would duplicate information already obtained through
the case description (see, e.g., Exs. 15: 9, 105, 210, 221, 406). For
example, the law firm of Ogletree, Deakins, Nash, Smoak & Stewart
offered comments on behalf of a group of employers known as the ODNSS
Coalition, remarking that ``The log and system of OSHA recordkeeping
would not benefit from a separate column for musculoskeletal disorders.
The proposed rules for recording these disorders are clear, and
[[Page 6030]]
the revisions to the ``case description'' column appearing on the OSHA
Form 300 provide for the ample identification of the disorders, which
will enable all interested parties to track and analyze entries of that
nature'' (Ex. 15: 406). Another group of commenters contended that a
separate MSD column would result in an inaccurate picture of MSD
incidence because the numbers recorded would increase as a result of
the inclusion of lower back MSDs in the cases to be entered in the
column (see, e.g., Exs. 15: 305, 308, 318, 346). Representative of
these comments is one from the National Association of Manufacturers
(NAM):
Given the over-inclusive definitions of the terms ``work-
related,'' ``injury or illness,'' ``medical treatment'' and ``MSDs''
(in Appendix B), and the fact that, for the first time, back
injuries would be included as MSDs, we strongly objected to that
idea. Under that approach, the MSD numbers probably would have been
huge, would have painted a grossly inaccurate and misleading picture
as to the current prevalence of MSDs, and would have been cited as
justification for an ergonomics standard. Unless and until those
deficiencies are completely eliminated, the NAM remains unalterably
opposed to the inclusion of an MSD column on the OSHA Form 300 (Ex.
15: 305).
OSHA also received numerous comments supporting the addition of a
separate MSD column on the Log (see, e.g., Exs. 35; 15: 32, 156, 371,
379, 380, 415, 418, 438). For example, the United Food and Commercial
Workers stated that:
Of key concern to our membership is the lack of any
categorization for musculoskeletal disorders (MSD). A major concern
in meatpacking and poultry plants, our committees will now be forced
to spend endless hours poring over the logs, reading each individual
definition and deciding whether it is a MSD. The logs are often hand
written and xerox copies of these are difficult to read. This is a
real burden for workers, companies, joint committees and anyone
using the logs (Ex. 15: 371).
After a thorough review of the record, and extensive consultation
with NIOSH and the BLS to establish the need for such statistics, OSHA
has concluded that including a separate column on the final OSHA 300
Log for MSD cases is essential to obtain an accurate picture of the MSD
problem in the United States. In 1997, more than 600,000 MSDs resulting
in days away from work were reported to the BLS by employers, although
determining this number has required close cooperation between OSHA and
the BLS and several ``special runs'' by the BLS (i.e., computer
analyses performed especially for OSHA) (see on the Internet at ftp://
146.142.4.23/pub/special.requests/ocwc/osh/). OSHA believes that such a
column on the OSHA 300 Log will not only permit more complete and
accurate reporting of these disorders and provide information on the
overall incidence of MSDs in the workplace, it will provide a useful
analytical tool at the establishment level. OSHA recognizes that the
column will add some complexity to the form, but believes that the
additional complexity will be more than offset by the fact that all
recordable MSDs will be captured in a single entry on the Log. Thus,
the total count of cases in the MSD column will allow employers,
employees, authorized representatives, and government representatives
to determine, at a glance, what the incidence of these disorders in the
establishment is. OSHA does not agree with those commenters who stated
that entries in the MSD column will duplicate information recorded in
the injury/illness description; the case description column will
include additional information, e.g., on the particular type of MSD
(back strain, carpal tunnel syndrome, wrist pain, tendinitis, etc.).
OSHA also does not agree with those commenters who argued that
including a separate column for MSDs would introduce error into the
national statistics on the incidence of MSDs. The views of these
commenters are not persuasive because the number of reportable lost-
workday MSDs is already being captured in national statistics, albeit
under two categories (``injuries'' and ``illnesses'') that are
difficult to interpret. In response to comments that including a
separate column on the Log will provide OSHA with ``justification for
an ergonomics standard,'' the Agency notes that it has already
developed and proposed an ergonomics standard despite the absence of a
single MSD column on employers' Logs.
Miscellaneous 300 Form Issues
The proposed OSHA Form 300 contained a column designated as the
``Employer Use'' column. Many employers keep two sets of injury and
illness records; one for OSHA Part 1904 purposes and another for
internal safety management system purposes. OSHA envisioned that the
proposed Employer Use column would be used to tailor the Log to meet
the needs of the establishment's particular safety and health program
and reduce the practice some employers have adopted of keeping multiple
sets of occupational injury and illness records for various purposes.
For example, OSHA envisioned that an employer could enter codes in this
column to collect data on occupational injuries and illnesses beyond
what is required by the OSHA Part 1904 regulation, such as the results
of accident investigations, whether the case was accepted by workers'
compensation, or whether or not the employee was hospitalized for
treatment.
A number of commenters supported the proposed Employer Use column
(see, e.g., Exs. 15: 87, 136, 137, 141, 170, 224, 266, 278, 359). Some
stated that employers could utilize the column to identify cases based
on specific criteria that could be used in their internal safety and
health evaluations (see, e.g., Exs. 15: 136, 137, 141, 170, 224, 266,
278, 359). For example, the National Safety Council stated ``The
Council believes that adding the employer use column to the log will
effectively reduce the adverse effects of accountability systems. This
will allow employers to identify cases for which supervisors and
managers should be held accountable, using company specific criteria''
(Ex. 15: 359, p. 14). Another commenter, Kathy Mull, stated ``The
comment on possible use of the `employer use column' to note cases not
included in internal safety statistics is a possible mechanism to defer
pressures on internal performance measures as tied strictly to OSHA
recordkeeping'' (Ex. 15: 278, p. 4).
Several commenters opposed the addition to the Log of an Employer
Use column, however (see, e.g., Exs. 15: 28, 82, 109, 132, 375). Among
these was the American Petroleum Institute, which stated ``If the
revised regulation meets API's recommended system objectives, the
`employer use' column would not be needed. Cases recorded would then be
credible, reasonable and meaningful to employers, employees (and to
OSHA). * * * OSHA should consider the employer as the primary user of
the system'' (Ex. 15: 375A, p. 55). Commenters also expressed concern
that an Employer Use column could have a negative effect on the use of
the data. For example, the Sherman Williams Company stated ``It is not
necessary to provide column j, for ``other'' information that may be
provided by the employer. It will lead to inconsistent utilization of
the proposed form. Delete column j of the proposed Form 300'' (Ex. 15:
132, p. 1).
Several other commenters argued for the addition of new data
requirements to the OSHA 300 Log, as follows:
[[Page 6031]]
------------------------------------------------------------------------
Commenter Suggested addition to the 300 Log
------------------------------------------------------------------------
G. Neil Companies (Ex. 15: Information explaining which employers
29). must keep the Log should be added to the
form.
Atlantic Dry Dock Corp. (Ex. A line to carry over the totals from
15: 179). previous page should be added at the top
of the form.
Maine Department of Labor The form should include three columns for
(Ex. 15: 41). case type: a column for days away only,
a column for days away and restricted,
and a column for restricted only to
differentiate the three different types
of cases.
Ford Motor Company (Ex. 15: ``To facilitate identification, Ford
347). proposes that the employee's last four
numbers of his or her social security
number be included on the OSHA 300 and
301 Forms * * * The last four numbers of
the social security number will greatly
assist in employee identification and at
the same time offer some measure of
confidentiality.''
American Trucking ``OSHA should add a new column to the
Associations (Ex. 15: 397). proposed OSHA 300 form allowing
employers to indicate whether an injury
occurred off-site. This recommendation
is not novel [ ] the current OSHA 101
form asks if the injury or illness
occurred on the employer's premises * *
* the inclusion of the `off-site' column
is crucial in determining which fixed
facilities maintain abnormally high
rates of workplace injuries/illnesses.
In addition, this recommendation
furthers the goal of requiring motor
carriers to record injuries and
illnesses to their employees as well as
provides valuable information to OSHA
and others regarding the employer's lack
of control over the site of the
injury.''
------------------------------------------------------------------------
OSHA has not added the fields or columns suggested by commenters to
the final 300 or 301 forms because the available space on the form has
been allocated to other data that OSHA considers more valuable. In
addition, there is no requirement in the final rule for employers to
enter any part of an employee's social security number because of the
special privacy concerns that would be associated with that entry and
employee access to the forms. However, employers are, of course, free
to collect additional data on occupational injury and illness beyond
the data required by the Agency's Part 1904 regulation.
The OSHA 301 Form
Although the final OSHA 300 Log presents information on injuries
and illnesses in a condensed format, the final OSHA 301 Incident Record
allows space for employers to provide more detailed information about
the affected worker, the injury or illness, the workplace factors
associated with the accident, and a brief description of how the injury
or illness occurred. Many employers use an equivalent workers'
compensation form or internal reporting form for the purpose of
recording more detailed information on each case, and this practice is
allowed under paragraph 1904.29(b)(4) of the final rule.
The OSHA Form 301 differs in several ways from the former OSHA 101
form it replaces, although much of the information is the same as the
information on the former 101 Form, although it has been reworded and
reformatted for clarity and simplicity. The final Form 301 does not
require the following data items that were included on the former OSHA
101 to be recorded:
--The employer name and address;
--Employee social security number;
--Employee occupation;
--Department where employee normally works;
--Place of accident;
--Whether the accident occurred on the employer's premises; and
--Name and address of hospital.
OSHA's reasons for deleting these data items from the final 301
form is that most are included on the OSHA Form 300 and are therefore
not necessary on the 301 form. Eliminating duplicate information
between the two forms decreases the redundancy of the data collected
and the burden on employers of recording the data twice. The employee
social security number has been removed for privacy reasons. OSHA
believes that the information found in several other data fields on the
301 Form (e.g., the employee's name, address, and date of birth)
provides sufficient information to identify injured or ill individuals
while protecting the confidentiality of social security numbers.
OSHA has also added several items to the OSHA Form 301 that were
not on the former OSHA No. 101:
--The date the employee was hired;
--The time the employee began work;
--The time the event occurred;
--Whether the employee was treated at an emergency room; and
--Whether the employee was hospitalized overnight as an in-patient (the
form now requires a check box entry rather than the name and address of
the hospital).
OSHA concludes that these data fields will provide safety and
health professionals and researchers with important information
regarding the occurrence of occupational injuries and illnesses. The
questions pertaining to what the employee was doing, how the injury or
illness occurred, what the injury or illness was, and what object or
substance was involved have been reworded somewhat from those contained
on the former OSHA No. 101, but do not require employers or employees
to provide additional information.
Proposed Form 301
The proposed OSHA 301 Injury and Illness Incident Record differed
in minor respects from the former OSHA 101. For example, a number of
fields would have been eliminated to reduce redundancy between the Log
and the Incident Report, and several items would have been added to the
Incident Report to obtain additional information about occupational
injuries and illnesses. OSHA proposed to add to the Form 301 the
following:
--The date the employee was hired;
--The time the employee began work;
--The time the event occurred;
--Whether the employee was treated at an emergency room;
--Whether the employee was hospitalized overnight as an in-patient;
--The equipment, materials or chemicals the employee was using when the
event occurred; and
--The activity the employee was engaged in when the event occurred.
In addition, the proposed regulation would have required the
employer to ask several questions (questions 16 through 18) in the same
order and using the same language as used on the OSHA forms, in order
to obtain more consistent and accurate data about these data items.
A number of commenters approved of the proposed Form 301 (see,
e.g., Exs. 21; 15: 32, 153, 246, 324, 369, 374, 380, 396, 427, 441).
For example, the International Brotherhood of Teamsters (Ex. 15: 369)
stated that the union ``[s]upports the [proposed] modifications of the
OSHA Injury and Illness Incident Record (OSHA Form
[[Page 6032]]
301) to collect more useful information.'' Other commenters preferred
the former OSHA 101 form and urged OSHA to retain it (see, e.g., Exs.
15: 47, 48, 122, 242). For example, the Boiling Springs Fire District
(Ex. 15: 47) opposed any changes to the Log or 101 forms, stating
``[W]e like the forms we are presently using and feel that the
information in these forms is adequate. I am a great believer in the
old saying `if it is not broke--why fix it'?''
Many of the commenters who specifically addressed the proposed 301
form were concerned about the privacy implications of providing
employees, former employees, and employee representatives with access
to the OSHA 301 forms. These concerns are addressed in detail in the
section of this summary and explanation associated with section
1904.35, Employee involvement. Many other commenters were concerned
with the use of equivalent forms (discussed above) and with the
requirement to ask certain questions in the same order and using the
same language (also discussed above). The remaining comments relating
to the proposed forms are grouped into three categories: comments about
the proposed case detail questions (proposed questions 9, 10, 16, 17
and18) and the data they would collect; the other fields OSHA proposed
to add to the form 101/301; and comments urging the Agency to place
additional data fields on the 301 form.
Rewording of the Proposed Case Detail Questions (questions 9, 10, 16,
17, and 18)
OSHA proposed to include five questions on the final OSHA 301 form
to gather information about the details of each work-related injury or
illness case:
--Proposed question 9 asked for information about the specific injury
or illness (e.g., second degree burn or toxic hepatitis);
--Proposed question 10 asked for information on the body part or parts
affected (e.g., lower right forearm);
--Proposed question 16 asked for information on all equipment,
materials or chemicals the employee was using when the event occurred;
--Proposed question 17 asked for information on the specific activity
the employee was engaged in when the event occurred;
--Proposed question 18 asked for information on how the injury or
illness occurred, including a description of the sequence of events
that led up to the incident and the objects or substances that directly
injured or made the employee ill.
OSHA received only one comment about the contents of the proposed
questions: George R. Cook, Jr., of the Hearing Conservation Services
Company, stated:
Questions 9, 10, and 16 on the OSHA 301 form should be worded so
that the combination of the answers to these three questions could
be used as the answer to Question F. on the OSHA 300. Therefore, if
a form 301 is filled out in computerized form, that information
could then be carried over to the form 300 thus eliminating the need
for duplicate entry (Ex. 15: 188).
As discussed above, final Form 301 no longer requires the employer
to include these questions on any equivalent form in the same format or
language as that used by the OSHA 301 form. However, any employer
wishing to take the approach suggested by Mr. Cook is free to do so.
Several commenters objected to proposed question 16 and questioned
why information on all of the materials, equipment or chemicals the
employee was using when the event occurred was needed (see, e.g., Exs.
15: 35, 205, 318, 334, 375, 424). For example, the Chocolate
Manufacturers Association and the National Confectioners Association,
in a joint comment (Ex. 15: 318, p. 9) , stated:
[W]e strongly disagree with the approach reflected in Question
16. We believe the additional information sought by Question 16 (and
not by Question 18) is irrelevant and would not, in any event,
justify a second set of reporting forms for every recordable
incident subject to federal or state OSHA jurisdiction. Requiring a
listing of ``all'' equipment, materials or chemicals an employee
might have been using--without regard to whether they contributed to
the injury or illness--would serve no useful purpose.
OSHA agrees with this assessment and has not included this question
from the final 301 form.
The final form solicits information only on the object or substance
that directly harmed the employee. The final 301 form contains four
questions eliciting case detail information (i.e., what was the
employee doing just before the incident occurred?, what happened?, what
was the injury or illness?, and what object or substance directly
harmed the employee?). The language of these questions on the final 301
form has been modified slightly from that used in the proposed
questions to be consistent with the language used on the BLS Survey of
Occupational Injuries and Illnesses collection form. The BLS performed
extensive testing of the language used in these questions while
developing its survey form and has subsequently used these questions to
collect data for many years. The BLS has found that the order in which
these questions are presented and the wording of the questions on the
survey form elicit the most complete answers to the relevant questions.
OSHA believes that using the time-tested language and ordering of these
four questions will have the same benefits for employers using the OSHA
Form 301 as they have had for employers responding to the BLS Annual
Survey. Matching the BLS wording and order will also result in benefits
for those employers selected to participate in the BLS Annual Survey.
To complete the BLS survey forms, employers will only need to copy
information from the OSHA Injury and Illness Incident Report to the BLS
survey form. This should be easier and less confusing than researching
and rewording responses to the questions on two separate forms.
The Data Fields OSHA Proposed to Change on the Proposed 301 Form
Proposed field 5, Date hired. OSHA proposed to add this data field
to collect additional data about the work experience of the injured or
ill worker. Such data can be very useful for employers, employees, and
OSHA because it enables researchers to discover, for example, whether
newly hired or inexperienced workers experience relatively more
injuries and illnesses than more experienced workers. Several
commenters questioned the value of the data OSHA proposed to collect in
field 5 (see, e.g., Exs. 15: 151, 152, 179, 180, 201, 347, 409). For
example, Caterpillar Inc. (Ex. 15: 201) recommended that ``[i]tem 5 of
Form 301 be deleted. The date hired is not a significant factor in
analyzing injury causation. If any similar data is necessary, it should
be the time on the current job, which is a better indicator of relative
job skills or work experience.'' Several commenters asked for
clarification of the ``date hired'' phrase (see, e.g., Exs. 15: 151,
152, 179, 180). For example, Atlantic Marine, Inc. (Ex. 15: 180) asked
``What date shall be recorded as the ``Date Hired'' if an employee is
laid off, is terminated, or resigns and then is rehired? Should the
date of initial hire or the date of rehire be recorded?'
OSHA continues to believe that the data gathered by means of the
``date hired'' field will have value for analyzing occupational injury
and illness data and has therefore included this data field on the
final OSHA 301 form. These data are useful for analyzing the incidence
of occupational injury and illness among newly hired
[[Page 6033]]
workers and those with longer tenure. OSHA is aware that the data
collected are not a perfect measure of job experience because, for
example, an employee may have years of experience doing the same type
of work for a previous employer, and that prior experience will not be
captured by this data field. Another case where this data field may
fail to capture perfect data could occur in the case of an employee who
has worked for the same employer for many years but was only recently
reassigned to new duties. Despite cases such as these, inclusion of
this data field on the Form 301 will allow the Agency to collect valid
data on length of time on the job for most employment situations.
For the relatively infrequent situation where employees are hired,
terminated, and then rehired, the employer can, at his or her
discretion, enter the date the employee was originally hired, or the
date of rehire.
Proposed field 6, Name of health care provider; proposed field 7,
If treatment off site, facility name and address; and proposed field 8,
Hospitalized overnight as in-patient? The former OSHA Form 101 included
similar data fields: former field 18 collected the ``name and address
of physician,'' while former field 19 collected data on ``if
hospitalized, name and address of hospital.'' Several commenters
discussed these data fields and questioned their usefulness for
analytical purposes (see, e.g., Exs. 15: 95, 151, 152, 179, 180, 347,
409). The Pacific Maritime Association (Ex. 15: 95) noted the
difficulty of collecting the data requested by proposed data fields 5,
6, 7, and 13 as they pertain to longshoremen:
Items 5, 6, 7, and 13 on the OSHA Form 301 presents problems for
direct employers of longshoremen. Longshoremen are hired on a daily
basis, select their own health care provider; may be treated at a
facility of their choice, and may not return to the same employer
when returning to work.
Several commenters asked OSHA to clarify the data that OSHA was
asking for in these data fields (see, e.g., Exs. 15: 51, 152, 179, 180,
347, 409). For example, the Ford Motor Company (Ex. 15: 347) asked:
[I]tem 6, ``Name of health care provider'' is unclear in terms
of the general instructions. Who is considered the primary health
care provider? Is it the individual who sees the employee on the
initial medical visit, the individual who renders the majority of
care for a case, or the individual who renders care if the employee
is referred to an off-site provider on the initial visit? We feel
that the last choice is the correct response. We also question the
benefit of providing this information. The criteria for OSHA
recordability focuses on the care provided, and not on the
individual providing the care.
Item 7, ``If treated off-site, facility name and address''
requires more specific instructions as to when this field must be
completed. Is this to be completed if the employee is referred to an
outside provider on the initial visit, or is this to be completed
should the individual be referred out later in the course of the
injury or illness? We feel that the former is the correct response.
We also question the benefit of providing this information.
OSHA has decided to continue to collect information on final Form
301 concerning the treatment provided to the employee (proposed data
field 7). OSHA's experience indicates that employers have not generally
had difficulty in providing this information, either in the longshoring
or any other industry. The data in this field is particularly useful to
an OSHA inspector needing additional information about the medical
condition of injured or ill employees. (OSHA does not request this
medical information without first obtaining a medical access order
under the provisions of 29 CFR part 1913, Rules Concerning OSHA Access
to Employee Medical Records.) The final OSHA 301 Form therefore
includes a data field for information on the off-site treating
facility.
The final 301 Form also includes a data field requesting the name
of the health care professional seen by the injured or ill employee.
The employer may enter the name either of the physician or other health
care professional who provided the initial treatment or the off-site
treatment. If OSHA needs additional data on this point, the records of
the health care professional listed will include both the name of the
referring physician or other health care professional as well as the
name of the health care professional to whom the employee was referred
for specialized treatment.
Several commenters asked OSHA to collect data on whether a
hospitalization involved in-patient treatment or was limited to out-
patient treatment (see, e.g., Exs. 15: 151, 152, 179, 180). For
example, Alabama Shipyard, Inc. recommended ``Instead of asking in
[proposed] item 8 if an employee is hospitalized overnight as in-
patient, have a check box to record whether the treatment was as an in-
patient or outpatient status'' (Ex. 15: 152). OSHA agrees that the
additional information suggested by this commenter would be useful, and
final OSHA Form 301 asks two hospitalization-related questions: Was
employee treated in an emergency room?, and Was employee hospitalized
overnight as an in-patient?
Proposed question 13, date of return to work at full capacity: The
proposed Injury and Illness Incident Report (Form 301) contained a data
field requiring the date the employee returned to work at full capacity
if the case involved restricted work activity or days away from work.
This field was included to provide information regarding the length of
time the employee was partially or fully incapacitated by the injury or
illness. However, because the final rule requires employers to record
day counts both for cases involving days away from work and cases
involving job transfer or restriction (see discussion above), the date
at which an employee returned to work at full capacity field is no
longer necessary and does not appear on the final form.
Proposed questions 14, Time of event and 15, Time employee began
work: No commenter objected to the inclusion of proposed data field 14,
Time of event, and only two commenters objected to proposed data field
15, Time employee began work (see, e.g., Exs. 15: 347, 409). Both of
these commenters, the Ford Motor Company and the American Automobile
Manufacturers Association, stated that:
``Time employee began work,'' is of questionable benefit. Many
employees perform a variety of jobs during the day or may have their
job changed during the day (work added or subtracted). This question
is burdensome and offers little benefit for data analysis.
Several commenters discussed the way the proposed form collected
the new information on the time of the accident (see, e.g., Exs. 15:
151, 152, 179, 180, 260, 262, 265, 347, 401, 409). Several of these
commenters suggested that OSHA do away with the am/pm designation and
use a 24-hour clock instead (see, e.g., Exs. 15: 151, 152, 179, 180).
The comments of Atlantic Marine (Ex. 15: 152) are representative:
Change the form from using A.M. or P.M. to using a 24-hour
clock. A 24-hour clock is much easier to use in drawing conclusions
on the relationship between injuries/illnesses and the time of day
that they occurred. OSHA may find that many employers are currently
using a 24-hour clock system.
Another group of commenters suggested that OSHA add am/pm boxes the
employer could simply check off as an easier way to collect the data
(see, e.g., Exs. 15: 260, 262, 265, 401). For example, the Edison
Electric Institute (Ex. 15: 401) suggested that ``Questions 14 and 15
should include a box which can be checked for AM and PM to reduce the
possibility that this information will be omitted.''
[[Page 6034]]
OSHA has included on the final 301 form the two questions asking
for data on the time of the event and the time the employee began work
so that employers, employees and the government can obtain information
on the role fatigue plays in occupational injuries and illness. Both
questions (i.e., on time of event and time employee began work) must be
included to conduct this analysis. Thus, OSHA has included both fields
on the final Form 301. In addition, the form has been designed so that
the employer can simply circle the a.m. or p.m. designation. OSHA
believes that this approach will provide the simplest, least burdensome
method for capturing these data, and that using a 24 hour clock system
would be cumbersome or confusing for most employers.
Data fields for the name and phone number of the person completing
the form. Both the former and proposed Incident Report forms included
fields designed to obtain information on the person who completed the
form. The former OSHA 101 form asked for the date of report, the name
of the preparer, and that person's official position. The proposed form
would have carried forward the name and title of the preparer and the
date, and added the person's phone number. OSHA received very little
comment on these proposed data fields. The Ford Motor Company (Ex. 15:
347) and the American Automobile Manufacturers Association (Ex. 15:
409) both made the following comment:
The ``Completed by'' field could be modified to consolidate name
and title. This would be consistent with the manner in which most
health care professionals routinely sign their name.
The ``Phone number required'' item should refer to the medical
department's number or the general number of the establishment, and
be included with the establishment's name and address at the top of
the form. This would decrease the paperwork burden by allowing the
use of a stamp or a pre-typed format as opposed to completing a
phone number on each OSHA Form 301.
The final OSHA Form 301 permits the employer to include the name
and title in either field, as long as the information is available. As
to the phone number, the employer may use whatever number is
appropriate that would allow a government representative accessing the
data to contact the individual who prepared the form.
Case File number: The former OSHA 101 form did not include a method
for linking the OSHA 300 and 301 forms. Any linking had to be
accomplished via the employee's name, department, occupation, and the
other information from the forms. OSHA proposed to add a field to the
OSHA 301 form that would use the same case number as that on the OSHA
300 form, thus making it easier for employers, employees and government
representatives to match the data from the two forms. Two commenters
objected to the addition of such a case file number (Exs. 15: 217,
334). The American Forest & Paper Association (AF&PA) argued:
Another issue of concern to AF&PA is the requirement for a
unique case or file number on the Form 300 and Form 301 to
facilitate cross-referencing between the forms. We believe there is
sufficient data (employee name, date of birth, date of injury) on
all existing state First Report of Injury forms to readily cross-
reference the First Report to the entry on the Form 300. A uniform
requirement for employers to create an indexing system would serve
no useful purpose. Furthermore, it would be unduly burdensome for
many affected companies except in those cases when there is a reason
to maintain the confidentiality of the affected employee's name (Ex.
15: 334).
OSHA continues to believe that easy linkage of the Forms 300 and
301 will be beneficial to all users of these data. Thus, the final Form
301 contains a space for the case file number. The file/case number is
required on both forms to allow persons reviewing the forms to match an
individual OSHA Form 301 with a specific entry on the OSHA Form 300.
Access by authorized employee representatives to the information
contained on the OSHA Form 301 is limited to the information on the
right side of the form (see Sec. 1904.35(b)(2)(v)(B) of the final
rule). The case/file number is the data element that makes a link to
the OSHA Form 300 possible. OSHA believes that this requirement will
add very little burden to the recordkeeping process, because the OSHA
Log has always required a unique file or case number. The final Form
301 requirement simply requires the employer to place the same number
on the OSHA 301 form.
Suggested Fields
Commenters submitted suggestions for other data fields that they
believed should be included on the OSHA Form 301, as follows.
------------------------------------------------------------------------
Suggested addition to the 301
Commenter(s) incident report, and OSHA
response
------------------------------------------------------------------------
American Industrial Hygiene Association ``AIHA suggests a corrective
(AIHA) (Ex. 15: 153). action box on the OSHA 301.
This form is often used as an
employer's accident report,
and this would encourage
employers to seek action as
appropriate to prevent
reoccurrence.''
OSHA has not included this
suggested change because the
301 form is not designed to be
an accident investigation
form, but is used to gather
information on occupational
injuries and illnesses.
Corrective actions would thus
not be an appropriate data
field for this form.
(Exs. 15: 179, 180, 151, 152).......... ``A space is needed for
recording an employee
identification number. This
number is important for
maintaining records. Some
employers use the employee's
social security number, while
others have a unique, employer
generated identifier for each
employee.''
..................................... OSHA believes the combination
of other data fields (case
number, employee name, address
and date of birth) provides
the user the ability to
identify individuals when
necessary.
Ogletree, Deakins, Nash, Smoak & Substituting ``regular job
Stewart (Ex. 15: 406). title'' would provide for
effective use of Form 301 in
conducting safety and health
analysis of the workplace.
The OSHA 300 Log asks for the
employee's job title. OSHA
does not believe there is a
need to ask for the data on
both forms.
[[Page 6035]]
American Petroleum Institute (Ex. 15: ``[t]he supplemental data
375). should contain all information
necessary to make
recordkeeping decisions, and
to facilitate certification of
the logs at year end. For this
reason, the following should
be added to what OSHA proposes
for the supplemental data:
company name, establishment
name, employee social security
number, regular job title,
``new injury or illness?'',
``loss of consciousness?'',
days away from work, first
date absent, est. duration of
absence, ``date days-away
cases returned to work?,''
``result in restricted
activity?'', ``job
transfer?'', ``termination of
employment?''
OSHA has not included these
data fields on the final form
because the Agency believes
that doing so would duplicate
the information on the OSHA
300 form. There is also no
need to use the OSHA 301 form
to document all the employer's
recordkeeping decisions.
Ford Motor Company and the American ``AAMA proposes the OSHA Form
Automobile Manufacturers Association 301 include the establishment
(Exs. 15: 347, 409). name and address at the top of
the form. This will assist not
only the employer, but OSHA as
well, to avoid any confusion
over records in which one
medical department may serve
several establishments. Also,
it will be helpful in those
cases where a company
employee, who works
predominately at one
particular facility, sustains
an injury or illness at
another company
establishment.''
The establishment name and
location are included on the
OSHA Form 300. In an effort to
identify and eliminate
duplication of data, OSHA has
not included this data item on
the OSHA Form 301.
Building and Construction Trades For every potentially
Department, AFL-CIO (Ex.15: 394). recordable injury or illness,
the employer shall record:
case number, date case
reported and name of employee.
--Job title of employee.
--Date of injury or illness.
--Time of event or exposure.
--Time employee began work.
--Specific description of
injury or illness.
--Location where the accident
or exposure occurred (e.g.
loading dock).
--Facility or Project (e.g.
Hackensack factory, or
Dreamwood Subdevelopment).
--Body part affected.
--Equipment, tools, materials,
or chemicals being used.
--Specific activity when
injured or upon onset of
illness.
--How injury or illness
occurred.
OSHA notes that the final OSHA
301 form contains many of
these data elements. The
Agency believes that the
remaining fields are
unnecessary or duplicative of
information already found on
the OSHA 300 Log.
------------------------------------------------------------------------
Summary
The final forms employers will use to keep the records of those
occupational injuries and illnesses required by the final rule to be
recorded have been revised to reflect the changes made to the final
rule, the record evidence gathered in the course of this rulemaking,
and a number of changes designed to simplify recordkeeping for
employers. In addition, the forms have been revised to facilitate the
use of equivalent forms and employers' ability to computerize their
records.
Subpart D. Other OSHA injury and illness recordkeeping requirements
Subpart D of the final rule contains all of the 29 CFR Part 1904
requirements for keeping OSHA injury and illness records that do not
actually pertain to entering the injury and illness data on the forms.
The nine sections of Subpart D are:
--Section 1904.30, which contains the requirements for dealing with
multiple business establishments;
--Section 1904.31, which contains the requirements for determining
which employees' occupational injuries and illnesses must be recorded
by the employer;
--Section 1904.32, which requires the employer to prepare and post the
annual summary;
--Section 1904.33, which requires the employer to retain and update the
injury and illness records;
--Section 1904.34, which requires the employer to transfer the records
if the business changes owners;
--Section 1904.35, which includes requirements for employee
involvement, including employees' rights to access the OSHA injury and
illness information;
--Section 1904.36, which prohibits an employer from discriminating
against employees for exercising their rights under the Act;
--Section 1904.37, which sets out the state recordkeeping regulations
in OSHA approved State-Plan states; and
--Section 1904.38, which explains how an employer may seek a variance
from the recordkeeping rule.
Section 1904.30 Multiple Establishments
Section 1904.30 covers the procedures for recording injuries and
illnesses occurring in separate establishments operated by the same
business. For many businesses, these provisions are irrelevant because
the business has only one establishment. However, many businesses have
two or more establishments, and thus need to know how to apply the
recordkeeping rule to multiple establishments. In particular, this
section applies to businesses where separate work sites create
confusion as to where injury and illness records should be kept and
when separate records must be kept for separate work locations, or
establishments. OSHA recognizes that the recordkeeping system must
accommodate operations of this type, and has adopted language in the
final rule to provide some flexibility for employers in the
construction, transportation, communications, electric and gas utility,
and sanitary services industries, as well as other employers with
geographically dispersed operations. The final rule provides, in part,
that operations are not considered separate establishments unless they
continue to be in operation for a year or more. This length-of-site-
operation provision increases the chances of discovering patterns of
occupational injury and illness, eliminates the burden of creating OSHA
300 Logs for transient work sites, and ensures that useful records are
generated for more permanent facilities.
OSHA's proposed rule defined an establishment as a single physical
location that is in operation for 60 calendar days or longer (61 FR
4059), but did not provide specific provisions covering multiple
establishments. In the final rule, the definition of
[[Page 6036]]
establishment is included in Subpart G, Definitions.
The basic requirement of Sec. 1904.30(a) of this final rule states
that employers are required to keep separate OSHA 300 Logs for each
establishment that is expected to be in business for one year or
longer. Paragraph 1904.30(b)(1) states that for short-term
establishments, i.e., those that will exist for less than a year,
employers are required to keep injury and illness records, but are not
required to keep separate OSHA 300 Logs. They may keep one OSHA 300 Log
covering all short-term establishments, or may include the short-term
establishment records in logs that cover individual company divisions
or geographic regions. For example, a construction company with multi-
state operations might have separate OSHA 300 Logs for each state to
show the injuries and illnesses of its employees engaged in short-term
projects, as well as a separate OSHA 300 Log for each construction
project expected to last for more than one year. If the same company
had only one office location and none of its projects lasted for more
than one year, the company would only be required to have one OSHA 300
Log.
Paragraph 1904.30(b)(2) allows the employer to keep records for
separate establishments at the business' headquarters or another
central location, provided that information can be transmitted from the
establishment to headquarters or the central location within 7 days of
the occurrence of the injury or illness, and provided that the employer
is able to produce and send the OSHA records to each establishment when
Sec. 1904.35 or Sec. 1904.40 requires such transmission. The sections
of the final rule are consistent with the corresponding provisions of
the proposed rule.
Paragraph 1904.30(b)(3) states that each employee must be linked,
for recordkeeping purposes, with one of the employer's establishments.
Any injuries or illnesses sustained by the employee must be recorded on
his or her home establishment's OSHA 300 Log, or on a general OSHA 300
Log for short-term establishments. This provision ensures that all
employees are included in a company's records. If the establishment is
in an industry classification partially exempted under Sec. 1904.2 of
the final rule, records are not required. Under paragraph
1904.30(b)(4), if an employee is injured or made ill while visiting or
working at another of the employer's establishments, then the injury or
illness must be recorded on the 300 Log of the establishment at which
the injury or illness occurred.
How Long Must an Establishment Exist to Have a Separate OSHA Log
As previously stated, the final rule provides that an establishment
must be one that is expected to exist for a year or longer before a
separate OSHA log is required. Employers are permitted to keep separate
OSHA logs for shorter term establishments if they wish to do so, but
the rule does not require them to do so. This is a change from the
proposed rule, which would have required an establishment to be in
operation for 60 days to be considered an ``establishment'' for
recordkeeping purposes. The proposed 60-day threshold would have
changed the definition of ``establishment'' used in OSHA's former
recordkeeping rule, because that rule included a one-year-in-operation
threshold for defining a fixed establishment required to keep a
separate OSHA Log (Ex. 2, p. 21). The effect of the proposed change in
the threshold would have been to increase the number of short-duration
operations required to maintain separate injury and illnesses records.
The majority of the comments OSHA received on this issue opposed
the decrease in the duration of the threshold from one year to 60
calendar days, primarily because commenters felt that requiring
temporary facilities to maintain records would be burdensome, costly
and would not increase the utility of the records (see, e.g., Exs. 21,
15: 21, 43, 78, 116, 122, 123, 145, 170, 199, 213, 225, 254, 272, 288,
303, 304, 305, 308, 338, 346, 349, 350, 356, 358, 359, 363, 364, 375,
389, 392, 404, 412, 413, 423, 424, 433, 437, 443, 475). For example,
the Associated Builders and Contractors, Inc. (ABC):
[d]isagrees that sites in existence for as little as 60 days
need separate injury and illness records. The redefinition of
``establishment'' will cause enormous problems for subcontractors in
a variety of construction industries. Even employers with small
workforces could be on the site of several projects at any one time,
and in the course of the year could have sent crews to hundreds of
sites. Though they may be on such sites for only brief periods of
time, they will be required under this proposal to create separate
logs for each site, increasing greatly their paperwork requirements
without increasing the amount of information available to their
employees (Ex. 15: 412).
In addition, many of these commenters argued that a 60-day
threshold would be especially burdensome because it would capture small
work sites where posting of the annual summary or mailing the summary
to employees would make little sense because so few cases would be
captured on each Log. The majority of these commenters suggested that
OSHA retain the former one-year duration threshold in the definition of
establishment (see, e.g., Exs. 15: 78, 123, 225, 254, 305, 356, 389,
404).
Other commenters expressed concern that the proposed 60-day
threshold would create an unreasonable burden on employers in service
industries like telecommunications and other utilities, whose employees
typically report to a fixed location, such as a service center or
garage, but perform tasks at transient locations that remain in
existence for more than 60 days. These commenters felt that classifying
such locations as ``establishments'' and creating thousands of new OSHA
Logs, would have ``no benefit to anyone'' (Ex. 15: 199) (see also Exs.
15: 65, 170, 213, 218, 332, 336, 409, 424).
In contrast, commenters who supported the 60-day threshold worried
that injuries and illnesses occurring at transient locations would
never be accounted for without such a provision (see, e.g., Exs. 15: 9,
133, 310, 369, 425). Some urged OSHA to adopt an even shorter time-in-
operation threshold (see, e.g., Exs. 15: 369, 418, 429). For example,
the International Brotherhood of Teamsters (IBT) stated that they
``[w]ould strongly support reducing the requirement to thirty days to
cover many low level housing construction sites, and transient
operations, similar to mobile amusement parks'' (Ex. 15: 369). The AFL-
CIO agreed: ``* * * the 60-day time period is still too long. We
believe that to truly capture a majority of these transient work sites,
a 30-day time period would be more realistic. A 30-day time period as
the trigger would capture construction activities such as trenching,
roofing, and painting projects which will continue to be missed if a
60-day time period is used'' (Ex. 15: 418). OSHA agrees that under the
proposed provisions there was a potential for injuries and illnesses to
be missed at short term establishments and for employees who did not
report to fixed establishments. Therefore, Secs. 1904.30(b)(1) and
(b)(3) have been added to make it clear that records (but not a
separate log) must be kept for short-term establishments lasting less
than one year, and that each employee must be linked to an
establishment.
The United Parcel Service (UPS) recommended that OSHA craft its
rule to coincide with a company's personnel records system, stating
``[t]he unit for which an employer maintains personnel records is
presumptively appropriate and efficient; accordingly, OSHA should not
mandate a rule that conflicts with a company's current personnel units
policy'' (Ex. 15: 424). OSHA recognizes
[[Page 6037]]
that employers would prefer OSHA to allow companies to keep records in
any way they choose. However, OSHA believes that allowing each company
to decide how and in what format to keep injury and illness records
would erode the value of the injury and illness records in describing
the safety and health experience of individual workplaces and across
different workplaces and industries. OSHA has therefore decided not to
adopt this approach in the final rule, but to continue its longstanding
requirement requiring records to be kept by establishment.
OSHA has reviewed all of the comments on this issue and has
responded by deleting any reference to a time-in-operation threshold in
the definition of establishment but specifying a one-year threshold in
section 1904.30(a) of the final rule. OSHA finds, based on the record
evidence, that the one-year threshold will create useful records for
stable establishments without imposing an unnecessary burden on the
many establishments that remain in existence for only a few months.
Centralized Recordkeeping
As previously stated, the proposed rule did not include a specific
section covering multiple establishments. The proposal did require that
records for employees not reporting to any single establishment on a
regular basis should be kept at each transient work site, or at an
established central location, provided that records could be obtained
within 4 hours if requested as proposed.
Most commenters supported provisions that would allow the employer
to keep records at a centralized location (see, e.g., Exs. 20, 21, 15:
9, 38, 48, 136, 137, 141, 154, 173, 203, 213, 224, 234, 235, 254, 260,
262, 265, 266, 272, 277, 278, 288, 303, 321, 336, 350, 367, 373, 375,
401, 409). Many, however, disagreed with the requirement that records
be produced within 4 hours if requested by an authorized government
official. Those comments are discussed in the preamble for
Sec. 1904.40, Providing records to government representatives. The only
other concern commenters expressed about centralized recordkeeping was
that centralized records, like computerized records, would make it more
difficult for employees to access the records (see, e.g., Exs. 15:379,
380, 418, 438).
OSHA does not believe that centralization of the records will
compromise timely employee or government representative access to the
records. To ensure that this is the case, centralization under
Sec. 1904.30(b)(2) is allowed only if the employer can produce copies
of the forms when access to them is needed by a government
representative, an employee or former employee, or an employee
representative, as required by Secs. 1904.35 and 40.
Recording Injuries and Illnesses Where They Occur
Proposed section 1904.7, Location of records, and section 1904.11,
Access to records, covered recordkeeping requirements for employees who
report to one establishment but are injured or made ill at other
locations of the same company. Specifically, these sections required
that records for employees reporting to a particular establishment but
becoming ill or injured at another establishment within the same
company be kept at the establishment in which they became injured or
ill. This was derived from OSHA's longstanding interpretation that
employees' cases should be recorded where they occur, if it is at a
company establishment (April 24, 1992 letter of interpretation to
Valorie A. Ferrara of Public Service Electric and Gas Company). Several
commenters objected to the proposed requirement that an employee's
injury or illness be recorded on the log of the establishment where the
injury occurred, rather than on the log of the establishment they
normally report to (see, e.g., Exs.15: 60, 107, 146, 184, 199, 200,
232, 242, 263, 269, 270, 329, 335, 343, 356, 375, 377). The comments of
the B.F. Goodrich Company (Ex. 15: 146) are representative:
[t]he requirement for a company to log a visiting employee's
injury or illness on the log of the company establishment that they
are visiting rather than on the log of their normal work
establishment, is not consistent with the data collection process.
As proposed, the rule requires the facility to record the injury or
illness and not the hours worked by the visiting employee. These
individuals would not normally be counted in the number of employees
at the visited site nor in the manhours worked at that site.
Recording of cases from visiting employees would improperly skew the
incidence rates of both facilities. This approach is particularly
inappropriate in the case of an illness, since the case may be a
result of accumulated exposures which have nothing to do with the
site visited during the onset of the illness. Alternately, an injury
or illness could manifest after the visitor leaves the facility.
OSHA disagrees with these commenters about where the injuries and
illnesses should be recorded. For the vast majority of cases, the place
where the injury or illness occurred is the most useful recording
location. The events or exposures that caused the case are most likely
to be present at that location, so the data are most useful for
analysis of that location's records. If the case is recorded at the
employee's home base, the injury or illness data have been disconnected
from the place where the case occurred, and where analysis of the data
may help reveal a workplace hazard. Therefore, OSHA finds that it is
most useful to record the injury or illness at the location where the
case occurred. Of course, if the injury or illness occurs at another
employer's workplace, or while the employee is in transit, the case
would be recorded on the OSHA 300 Log of the employee's home
establishment.
For cases of illness, two types of cases must be considered. The
first is the case of an illness condition caused by an acute, or short
term workplace exposure, such as skin rashes, respiratory ailments, and
heat disorders. These illnesses generally manifest themselves quickly
and can be linked to the workplace where they occur, which is no
different than most injury cases. For illnesses that are caused by
long-term exposures or which have long latency periods, the illness
will most likely be detected during a visit to a physician or other
health care professional, and the employee is most likely to report it
to his or her supervisor at the home work location.
Recording these injuries and illnesses could potentially present a
problem with incidence rate calculations. In many situations, visiting
employees are a minority of the workforce, their hours worked are
relatively inconsequential, and rates are thus unaffected to any
meaningful extent. However, if an employer relies on visiting labor to
perform a larger amount of the work, rates could be affected. In these
situations, the hours of these personnel should be added to the
establishment's hours of work for rate calculation purposes.
Section 1904.31 Covered employees
Final Rule Requirements and Legal Background
Section 1904.31 requires employers to record the injuries and
illnesses of all their employees, whether classified as labor,
executive, hourly, salaried, part-time, seasonal, or migrant workers.
The section also requires the employer to record the injuries and
illnesses of employees they supervise on a day-to-day basis, even if
these workers are not carried on the employer's payroll.
Implementing these requirements requires an understanding of the
Act's definitions of ``employer'' and
[[Page 6038]]
``employee.'' The statute defines ``employer,'' in relevant part, to
mean ``a person engaged in a business affecting interstate commerce who
has employees.'' 29 U.S.C. 652 (5). The term ``person'' includes ``one
or more individuals, partnerships, associations, corporations, business
trusts, legal representatives, or any organized group of persons.'' 29
U.S.C. 652 (4). The term ``employee'' means ``an employee of an
employer who is employed in a business of his employer which affects
interstate commerce.'' 29 U.S.C. 652(6). Thus, any individual or entity
having an employment relationship with even one worker is an employer
for purposes of this final rule, and must fulfill the recording
requirements for each employee.
The application of the coverage principles in this section presents
few issues for employees who are carried on the employer's payroll,
because the employment relationship is usually well established in
these cases. However, issues sometimes arise when an individual or
entity enters into a temporary relationship with a worker. The first
question is whether the worker is an employee of the hiring party. If
an employment relationship exists, even if temporary in duration, the
employee's injuries and illnesses must be recorded on the OSHA 300 Log
and 301 form. The second question, arising in connection with employees
provided by a temporary help service or leasing agency, is which
employer--the host firm or the temporary help service--is responsible
for recordkeeping.
Whether an employment relationship exists under the Act is
determined in accordance with established common law principles of
agency. At common law, a self-employed ``independent contractor'' is
not an employee; therefore, injuries and illnesses sustained by
independent contractors are not recordable under the final
Recordkeeping rule. To determine whether a hired party is an employee
or an independent contractor under the common law test, the hiring
party must consider a number of factors, including the degree of
control the hiring party asserts over the manner in which the work is
done, and the degree of skill and independent judgment the hired party
is expected to apply. Loomis Cabinet Co. v. OSHRC, 20 F.3d 938, 942
(9th Cir. 1994).
Other individuals, besides independent contractors, who are not
considered to be employees under the OSH Act are unpaid volunteers,
sole proprietors, partners, family members of farm employers, and
domestic workers in a residential setting. See 29 CFR Sec. 1975.4(b)(2)
and Sec. 1975.6 for a discussion of the latter two categories of
workers. As is the case with independent contractors, no employment
relationship exists between these individuals and the hiring party, and
consequently, no recording obligation arises.
A related coverage question sometimes arises when an employer
obtains labor from a temporary help service, employee leasing firm or
other personnel supply service. Frequently the temporary workers are on
the payroll of the temporary help service or leasing firm, but are
under the day-to-day supervision of the host party. In these cases,
Section 1904.31 places the recordkeeping obligation upon the host, or
utilizing, employer. The final rule's allocation of recordkeeping
responsibility to the host employer in these circumstances is
consistent with the Act for several reasons.
First, the host employer's exercise of day-to-day supervision of
the temporary workers and its control over the work environment
demonstrates a high degree of control over the temporary workers
consistent with the presence of an employment relationship at common
law. See Loomis Cabinet Co., 20 F.3d at 942. Thus, the temporary
workers will ordinarily be the employees of the party exercising day-
to-day control over them, and the supervising party will be their
employer.
Even if daily supervision is not sufficient alone to establish that
the host party is the employer of the temporary workers, there are
other reasons for the final rule's allocation of recordkeeping
responsibility. Under the OSH Act, an employer's duties and
responsibilities are not limited only to his own employees. Cf.
Universal Constr. Co. v. OSHRC, 182 F.3d 726, 728-731 (10th Cir. 1999).
Assuming that the host is an employer under the Act (because it has an
employment relationship with someone) it reasonably should record the
injuries of all employees, whether or not its own, that it supervises
on a daily basis. This follows because the supervising employer is in
the best position to obtain the necessary injury and illness
information due to its control over the worksite and its familiarity
with the work tasks and the work environment. As discussed further
below, the final rule is sensible and will likely result in more
accurate and timely recordkeeping.
The Proposed Rule
The final rule's coverage rules are consistent with the basic
principles embodied in the former rule and in the proposal. The
proposed rule would have continued to require employers to record the
injuries and illnesses of employees over whose work they exert ``day-
to-day supervision'' (61 FR 4058/3). OSHA proposed to codify this
longstanding interpretation by adding a definition of ``employee''
together with a note explaining its application to Part 1904
recordkeeping. The proposed definition restated the definition of
employee in the OSH Act. It then explained that, for recordkeeping
purposes, an employer should consider as its employees any persons who
are supervised on a day-to-day basis at the establishment. The proposal
noted that this was the test regardless of whether the persons were
labeled as ``independent contractors,'' ``migrant workers,'' or workers
provided by a temporary help service.
The proposal further explained that day-to-day supervision occurs
``when, in addition to specifying the output, product or result to be
accomplished by the person's work, the employer supervises the details,
means, methods and processes by which the work is to be accomplished''
(61 FR 4059/1). OSHA also noted that other classes of workers would not
be covered because they were not considered employees, either as
defined in the OSH Act or as set forth in regulatory interpretations.
These included sole proprietors, partners, family members of farm
employers, and domestic workers in a residential setting.
Response To the Proposal
A number of commenters agreed with OSHA's approach to differentiate
between employees and true independent contractors, and to require
employers to keep records for employees they supervise on a day-to-day
basis (see, e.g., Exs. 15: 61, 65, 205, 305, 322, 333, 346, 348, 351,
369, 390, 429). The National Association of Manufacturers (NAM) stated:
[f]or purposes of recordkeeping, OSHA has consistently taken the
position that the term ``employee'' includes all personnel who are
supervised on a day-to-day basis by the employer using their
services (not only with respect to the result to be achieved, but
also the means, methods and processes by which the work is to be
accomplished). While this is a fact-intensive determination that
must be made on a case-by-case basis, we commend the Agency for
attempting to clarify the matter by making that approach an explicit
part of the rule, presumably for purposes of both recordkeeping and
records access (Ex. 15: 305).
The National Association of Temporary Staffing Services (NATSS))
supported:
[[Page 6039]]
[c]ontinuation of ``utilizing employer'' rule for maintaining
records for temporary employees. Temporary help and staffing service
firms recruit individuals with a broad range of training, education
and skills, and then assign them to work at customer locations on a
variety of assignments and projects. The fundamental nature of the
service relationship is such that while staffing service firms are
the general employers of their workers and assume a broad range of
employer responsibilities, those responsibilities generally do not
include direct supervision of the employees at the worksite. Hence,
staffing firms have a limited ability to affect conditions at the
worksite.
In recognition of the above, OSHA's long-standing policy has
been to require the worksite employer, not the staffing firm, to
maintain illness and injury records of temporary workers supervised
by the worksite employer. The proposed rules continue this policy.
In a special ``note'' in section 1904.3, ``employee'' for record
keeping purposes is defined to include temporary workers ``when they
are supervised on a day-to-day basis by the employer utilizing their
services.'' Under this definition, the worksite employer, not the
staffing firm, would be required to maintain records for temporary
employees supplied by a staffing firm, provided they are supervised
by the worksite employer. As stated in the background section of the
proposed rule, ``this is consistent with case law and the
interpretation currently used by OSHA'' (61 F.R. 4034). NATSS
strongly supports this proposed definition. (Ex. 15: 333)
A number of commenters opposed OSHA's proposed approach on this
issue (see, e.g., Exs. 15: 9, 23, 26, 64, 67, 82, 92, 119, 154, 159,
161, 184, 185, 198, 203, 204, 225, 259, 287, 297, 299, 312, 335, 336,
338, 341, 356, 363, 364, 370, 404, 423, 424, 427, 431, 437, 443).
Several of these commenters thought that including temporary employees
from temporary services, independent contractors and other leased
personnel within the definition of employee would impose new burdens on
employers (see, e.g., Exs. 15: 35, 67, 356, 423, 437). However, the
proposal did not alter the long-standing meanings of the terms
employee, employer or employment relationship. The day-to-day
supervision test for identifying the employer who is responsible for
compliance with Part 1904 is a continuation of OSHA's former policy,
and is consistent with the common law test. The comments indicate that
many employers are not aware that they need to keep records for leased
workers, temporary workers, and workers who are inaccurately labeled
``independent contractors'' but are in fact employees. However, these
workers are employees under both the former rule and the final rule.
Incorporating these requirements into the regulatory text can only help
to improve the consistency of the data by clarifying the employer's
responsibilities.
Several commenters erroneously believed that they might need to
keep records for all employees of independent contractors performing
work in their establishment (see, e.g., Exs. 15: 161, 203, 312). The
Battery Council International remarked:
[i]t is unclear how this clarification would apply to employers
in the battery industry who hire independent contractors to perform
construction and other activities on their manufacturing facilities.
Often times, battery manufacturers will provide the contractors with
an orientation to the facility (which includes the facility's safety
and health rules and location of MSDSs) [material safety data
sheets], and monitor the work of the contractor to ensure that work
contracted for has been completed, but do not otherwise supervise
the details, means, methods and processes by which the work is to be
accomplished. In these relationships, the contractors certify to the
battery manufacturers that they comply with all OSHA requirements
including training, which must be completed as part of the work
contract.
If the intent of the proposed clarification is to not require
the reporting of injuries and illnesses to independent contractors
under similar conditions as described above, then BCI supports this
concept and requests further clarification on this issue. BCI will
oppose, however, any attempt by OSHA to require the reporting of
injuries or illnesses that occur to ``independent contractors''
where the employer has not otherwise supervised the details, means,
methods and processes by which the work was accomplished (Ex. 15:
161).
The International Dairy Foods Association (IDFA) was concerned that
if a dairy processing facility hired an electrical contractor to
install new lighting and the electrical contractor's employee were
injured while installing the lighting, the dairy might have to record
the incident in its Part 1904 records (Ex. 15: 203).
The 1904 rule does not require an employer to record injuries and
illnesses that occur to workers supervised by independent contractors.
However, the label assigned to a worker is immaterial if it does not
reflect the economic realities of the relationship. For example, an
employment contract that labels a hired worker as an independent
contractor will have no legal significance for Part 1904 purposes if in
fact the hiring employer exercises day-to-day supervision over that
worker, including directing the worker as to the manner in which the
details of the work are to be performed. If the contractor actually
provides day-to-day supervision for the employee, then the contractor
is responsible for compliance with Part 1904 as to that employee. In
the IDFA example, unless the dairy exercised supervisory control over
the time and manner of the electrician's work, the dairy would not be
considered the electrician's employer and would not be required to
record the incident.
Some commenters argued that the injury and illness statistics would
be more accurate or useful if the payroll employer recorded the
injuries and illnesses, regardless of which employer controlled the
work or the hazard (see, e.g., Exs. 15: 9, 26, 92, 161, 198, 259, 287,
297, 299, 333, 341, 356, 364, 443). The Sandoz Corporation stated that
``[t]he control and responsibility for reporting these injuries should
be with the employer, i.e. the establishment that pays the employee.
This simplifies the control and reporting. It also allows a company
that utilizes temporary or contract services to look at the OSHA record
of the supplier as part of the purchasing decision and thus put
pressure on the supplier for better safety performance, thus using
market forces to improve safety'' (Ex. 15: 299). The Battery Council
International added ``[r]equiring employers to record the injuries and
illnesses of independent contractors under such circumstances is unfair
and will result in the over recording of injuries and illnesses by the
battery industry. This will result in more OSHA inspections on the lead
battery industry, which will in turn impose additional costs and
burdens on BCI members'' (Ex. 15: 161). The Fertilizer Institute stated
``[a]dopting compensation as the basis for determining the employer/
employee relationship results in simplification that is not afforded
when one must look at day-to-day supervision'' (Ex. 15: 154).
A few commenters recommended that the employer responsible for
workers' compensation insurance also be required to record the injuries
and illnesses (Ex. 15: 204, 225, 336, 364). The American Gas
Association (Ex. 15: 225) stated that OSHA should:
[s]trive to parallel Workers' Compensation law. The employer may
have supervision of some types of temporary workers, e.g., daily
office workers. However, the employer may have no control over a
crew of construction contractors. In this case, the employer does
not supervise the details, means, methods and processes by which the
work accomplished. The definition of employee, along with the note
to the definition proposed by OSHA requires a subjective
determination to be made. 61 Fed. Reg. at 4058. We recommend OSHA
follow a more objective test. The responsibility of reporting
injuries and illnesses should turn on the fact of who provides the
Workers' Compensation insurance, not necessarily daily supervision.
This would then be an objective, rather than
[[Page 6040]]
subjective test, less likely open to interpretation and mistakes.
OSHA has rejected the suggestions that either the payroll or
workers' compensation employer keep the OSHA 1904 records. The Agency
believes that in the majority of circumstances the payroll employer
will also be the workers' compensation employer and there is no
difference in the two suggestions. Temporary help services typically
provide the workers' compensation insurance coverage for the employees
they provide to other employers. Therefore, our reasons for rejecting
these suggestions are the same. OSHA agrees that there are good
arguments for both scenarios: 1. Including injuries and illnesses in
the records of the leasing employer (the payroll or workers'
compensation employer and 2. For including these cases in the records
of the controlling employer. Requiring the payroll or workers'
compensation employer to keep the OSHA records would certainly be a
simple and objective method. There would be no doubt about who keeps
the records. However, including the cases in the records of the
temporary help agency erodes the value of the injury and illness
records for statistical purposes, for administering safety and health
programs at individual worksites, and for government inspectors
conducting safety and health inspections or consultations. The benefits
of simplification and clarity do not outweigh the potential damage to
the informational value of the records, for the reasons discussed
below.
First, the employer who controls the workers and the work
environment is in the best position to learn about all the injuries and
illnesses that occur to those workers. Second, when the data are
collected for enforcement and research use and for priority setting,
the injury and illness data are clearly linked to the industrial
setting that gave rise to them. Most important, transferring the
recording/reporting function from the supervising employer to the
leasing firm would undermine rather than facilitate one of the most
important goals of Part 1904--to assure that work-related injury and
illness information gets to the employer who can use it to abate work-
related hazards. If OSHA were to shift the recordkeeping responsibility
from the controlling employer to the leasing firm, the records would
not be readily available to the employer who can make best use of them.
OSHA would need to require the leasing firm to provide the controlling
employer with copies of the injury and illness logs and other reports
to meet this purpose. This would be both burdensome and duplicative.
Requiring the controlling (host) employer to record injuries and
illnesses for employees that they control has several advantages.
First, it assigns the injuries and illnesses to the individual
workplace with the greatest amount of control over the working
conditions that led to the worker's injury or illness. Although both
the host employer and the payroll employer have safety and health
responsibilities, the host employer generally has more control over the
safety and health conditions where the employee is working. To the
extent that the records connect the occupational injuries and illnesses
to the working conditions in a given workplace, the host employer must
include these cases to provide a full and accurate safety and health
record for that workplace.
If this policy were not in place, industry-wide statistics would be
skewed. Two workplaces with identical numbers of injuries and illnesses
would report different statistics if one relied on temporary help
services to provide workers, while the other did not. Under OSHA's
policy, when records are collected to generate national injury and
illness statistics, the cases are properly assigned to the industry
where they occurred. Assigning these injuries and illnesses to
temporary help services would not accurately reflect the type of
workplace that produced the injuries and illnesses. It would also be
more difficult to compare industries. To illustrate this point,
consider a hypothetical industry that relies on temporary help services
to provide 10% of its labor force. Assuming that the temporary workers
experience workplace injury and illness at the same rate as traditional
employees, the Nation's statistics would underrepresent that industry's
injury and illness numbers by 10%. If another industry only used
temporary help services for 1% of the labor force, its statistics would
be closer to the real number, but comparisons to the 10% industry would
be highly suspect.
The policy also makes it easier to use an industry's data to
measure differences that occur in that industry over time. Over the
last 20 years, the business community has relied increasingly on
workers from temporary help services, employee leasing companies, and
other temporary employees. If an industry sector as a whole changed its
practices to include either more or fewer temporary workers over time,
comparisons of the statistics over several years might show trends in
injury and illness experience that simply reflected changing business
practices rather than real changes in safety and health conditions.
Some commenters objected to this aspect of the proposal because
they thought it would require both the personnel leasing firm and the
host employer to record injuries and illnesses. Double recording would
lead to inaccurate statistics when both employers reported their data
to BLS (see, e.g., Exs. 15: 9, 26, 92, 198, 259, 287, 297, 333, 341,
356, 364, 443). The National Association of Temporary Staffing Services
Stated:
[i]f the exemption is not retained in the case of SIC 7363 [Help
Supply Services] employers, it would be especially important for the
final rules to expressly provide * * * that there is no intent to
impose a dual reporting requirement. At least one state OSH office
already has construed the proposed lifting of the partial exemption
as creating an obligation on the part of staffing firms to maintain
records for all of its employees, including temporary employees
supervised by the worksite employer. This is clearly inconsistent
with the intent of the proposed rule and should be clarified (Ex.
15: 333).
The Society of the Plastics Industry added:
[b]ecause statistics are required to be collected for several
years, it would take a significant effort to contact several
independent companies on a continual basis to obtain such
information. This would only result in a serious duplication of
records, as both the host employer and the temporary leasing
employer record the case. This will increase the recordkeeping
burden for both the employer and those independent companies hired
for a specific job by that employer (Ex. 15: 364).
OSHA agrees with these commenters that there is a potential for
double counting of injuries and illnesses for workers provided by a
personnel supply service. We do not intend to require both employers to
record each injury or illness. To solve this problem, the rule, at
Sec. 1904.31(b)(4), specifically states that both employers are not
required to record the case, and that the employers may coordinate
their efforts so that each case is recorded only once--by the employer
who provides day-to-day supervision. When the employers involved choose
to work with each other, or when both employers understand the Part
1904 regulations as to who is required to record the cases and who is
not, there will not be duplicative recording and reporting. This policy
will not completely eliminate double recording of these injuries and
illnesses, but it provides a mechanism for minimizing the error in the
BLS statistics.
OSHA believes that many employers already share information about
these
[[Page 6041]]
injuries and illnesses to help each other with their own respective
safety and health responsibilities. For example, personnel service
employers need information to process workers' compensation claims and
to determine how well their safety and health efforts are working,
especially those involving training and the use of personal protective
equipment. The host employer needs information on conditions in the
workplace that may have caused the injuries or illnesses.
Many commenters objected to the requirement that the employer who
controls the work environment record injuries and illnesses of
temporary workers because that employer does not have adequate
information to record the cases accurately (see, e.g., Exs. 15: 9, 23,
184, 341, 363, 364, 370). These commenters contended that temporary
workers supplied by personnel agencies may not have been at any given
assignment long enough for the controlling employer to count days away
from work accurately or to make informed judgments about the
recordability of ongoing or recurring cases. The comments also
contended that the controlling employer may have difficulty judging
whether an injury or illness is related to that employer's work
environment, to other places of employment, or is totally non-work
related. These drawbacks in turn affect the recording employer's
ability to certify to the completeness and accuracy of the annual
summary of the Log. U.S. West, Inc. (Ex. 15: 184) remarked:
[e]mployers should not be responsible for recordkeeping
involving independent contractors, workers from temporary agencies,
etc. A major reason for this would be the difficulties presented
when trying to track such individuals for injuries/illnesses that
have long periods of days away from work. In addition, it is often
difficult to assign work relatedness for cases to a specific
employer--an example would be upper extremity repetitive motion
disorders for an individual from a temporary agency that works for
several different employers in the course of a week or month. To
avoid such problems, recordkeeping should be the responsibility of
the individual's actual employer.
OSHA agrees with these commenters that recording work-related
injuries and illnesses for temporary, leased employees will sometimes
present these difficulties. However, the solution is not, as some
commenters urge, to require the personnel leasing agency to assume
responsibility for Part 1904 recording and reporting. The personnel
leasing firm will not necessarily have better information than the host
employer about the worker's exposures or accidents in previous
assignments, previously recorded injuries or illnesses, or the
aftermath of an injury or illness. And the personnel leasing firm will
certainly have less knowledge of and control over the work environment
that may have caused, contributed to, or significantly aggravated an
injury or illness. As described above, the two employers have shared
responsibilities and may share information when there is a need to do
so.
If Part 1904 records are inaccurate due to lack of reasonably
reliable data about leased employees, there are ways for OSHA to
address the problem. First, the OSH Act does not impose absolutely
strict liability on employers. The controlling employer must make
reasonable efforts to acquire necessary information in order to satisfy
Part 1904, but may be able to show that it is not feasible to comply
with an OSHA recordkeeping requirement. If entries for temporary
workers are deficient in some way, the employer can always defend
against citation by showing that it made the efforts that a reasonable
employer would have made under the particular circumstances to obtain
more complete or accurate data.
A few commenters suggested that OSHA should link the recording
requirement to the duration of time that the contract or temporary
employee works at a specific location (see, e.g., Exs. 15: 185, 259,
341, 364). The National Wholesale Druggists Association (NWDA) believed
that:
[t]here should be a length-of-employment delineation to
determine whether a temporary or contract employee illness or injury
should be included in the OSHA log. OSHA should set a length of time
that the contract or temporary employee must work in a location
before requirements for OSHA log reporting are triggered. By setting
a length of employment standard, OSHA will not only eliminate the
possibility of duplicative reporting of injuries and illnesses but
will also eliminate the reporting of those short-term temporary
employee assignments that may be covered by the temporary agency
(Ex. 15: 185).
The Society of the Plastics Industry (SPI) recommended that the
controlling firm should only keep records for permanently leased
workers, stating ``[f]or temporary employees, the employer who pays an
employee (with the presumption that this is for whom they work) should
be required to keep the records. For permanently assigned, leased
employees, SPI agrees that such cases should be recorded by the leasing
employer'' (Ex. 15: 364). The Iowa Health Care Association asked
whether a temporary nurse's aide who works in a facility for seven days
to cover a vacationing permanent employee would be considered to be
under the day-to-day supervision of the host facility (Ex. 15: 259).
OSHA has decided not to base recording obligations on the temporary
employee's length of employment. Recording the injuries and illnesses
of some temporary employees and not others would not improve the value
or accuracy of the statistics, and would make the system even more
inconsistent and complex. In OSHA's view, the duration of the
relationship is much less important than the element of control. In the
example of the temporary nurse's aide, for OSHA recordkeeping purposes
the worker would be considered an employee of the facility for the days
he or she works under the day-to-day supervision of the host facility.
Several commenters questioned whether or not temporary workers
would be included in the total number of employees of that employer
(see, e.g., Exs. 15: 67, 356, 375, 437). The number of employees is
used in two separate areas of the recordkeeping system. The number of
employees is used to determine the exemption for smaller employers, and
is entered on the annual summary of occupational injuries and
illnesses. The Small Business Administration expressed concern over
whether counting these workers as employees would affect the exemption
for smaller employers, stating ``[t]he definition of ``employee'' goes
beyond the statutory intent * * * Small businesses would not only have
new obligations for coverage, but this methodology for counting
employees would impact the opportunity for an exemption under this
standard'' (Exs. 15: 67, 437). The American Petroleum Institute (API)
was concerned about how the employee count affects the way that the
host employer completes the annual summary, particularly the entries
for hours worked by all employees and the average number of employees:
[u]sing the OSHA-specified approach for determining the number
of employees and hours worked, particularly for temporary employees
and/or smaller establishments, is not often feasible. Assumption (1)
[that the employer already has this data] is not true for temporary
employees. Their hours worked are maintained by their contract
employers. Host employers have dollar costs paid to each contractor
employer. Therefore, getting employee counts and hours worked for
temporaries requires making assumptions and estimating (Ex. 15:
375).
Because OSHA is using the common law concepts to determine which
workers are to be included in the records, a worker who is covered in
[[Page 6042]]
terms of recording an injury or illness is also covered for counting
purposes and for the annual summary. If a given worker is an employee
under the common law test, he or she is an employee for all OSHA
recordkeeping purposes. Therefore, an employer must consider all of its
employees when determining its eligibility for the small employer
exemption, and must provide reasonable estimates for hours worked and
average employment on the annual summary. OSHA has included
instructions on the back of the annual summary to help with these
calculations.
The Texas Chemical Council argued that supervising employers should
not have to record injuries or illnesses of agency-supplied workers
unless the supervising employer has authority to hold these workers
accountable for safety performance (Ex. 15: 159). According to this
commenter, most temporary agencies limit the contracting employer to
following the agencies' policies for corrective action for unacceptable
performance. OSHA would simply point out that this is a matter within
the contract arrangements between the two employers, and that OSHA
intervention in this area is not necessary or appropriate. In any
event, we believe that this should not determine who records
occupational injuries and illnesses.
The Phibro-Tech company asked ``[i]f the facility is now
responsible for tracking these injuries on their Form 300, will this
affect the Worker's Compensation liability?'' (Ex. 15: 35). Tracking
injuries and illnesses for OSHA purposes does not affect an employer's
workers' compensation liability. An employer's liability for workers'
compensation is a separate matter that is covered by state law.
Employers who maintain workers' compensation coverage will be
responsible for injuries and illnesses regardless of which employer
records them for OSHA purposes.
Bell Atlantic Network Services asked ``[a]re contract employee OSHA
recordable injury/illness incidents to be recorded on the same OSHA 300
log as employer's full-time employees? Are they to be identified as
``Contract/Temporary'' employees on the OSHA 300 Log, i.e., under the
column E--Job Title?'' (Ex. 15: 218). OSHA's view is that a given
establishment should have one OSHA Log and only one Log. Injuries and
illnesses for all the employees at the establishment are entered into
that record to create a single summary at the end of the year. OSHA
does not require temporary workers or any other types of workers to be
identified with special titles in the job title column, but also does
not prohibit the practice. This column is used to list the occupation
of the injured or ill worker, such as laborer, machine operator, or
nursing aide. However, OSHA does encourage employers to analyze their
injury and illness data to improve safety and health at the
establishment. In some cases, identifying temporary or contract workers
may help an employer to manage safety and health more effectively. Thus
an employer may supplement the OSHA Log to identify temporary or
contract workers, although the rule does not require it.
OSHA received two suggestions that would provide an OSHA inspector
with injury and illness data for temporary workers without putting
their injuries on the host employer's OSHA 300 Log. The National Grain
and Feed Association, Grain Elevator and Processing Society, and
National Oilseed Processors Association jointly recommended:
[e]mployers with employees who work under contract at a site
other than the employer's should be required to provide a copy of
the appropriate first report of injury or OSHA 301 to the site
controlling employer. The site controlling employer can then
maintain a file of Form 301's to facilitate OSHA's evaluation of
workplace hazards (Ex. 15: 119).
The Douglas Battery Manufacturing (Ex. 15: 82) company suggested
the following alternative:
[a]n option that would allow an employer of temporary workers to
determine the incident rate of the temporaries, would be to require
the temporary agency/ contractor to forward a copy of its OSHA log
for workers at a particular facility, to that facility by February
of the next calendar year. The names and other personal identifiers
of the temporary/contract workers could be removed prior to
submittal but the data would be available on site for agency
inspection purposes.
OSHA believes that neither of these alternatives would be an
acceptable substitute for completing the 300 Log and 301 form for
injured workers. The information would not be entered into the annual
summary, so the establishment's statistics would not be complete. While
these options would create a method (although a cumbersome method) for
providing the information to a government inspector, the data would not
be collected for statistical purposes.
Some commenters asked OSHA about how they should deal with a
variety of other types of workers. The American Ambulance Association
suggested that OSHA ``[s]pecifically exclude from the definition of
employee, students who are unpaid by the company/institution which is
providing a clinical or practice setting'' (Ex. 15: 226). The Maine
Department of Labor (Ex. 15: 41) asked the following question:
[q]uestions about how to report people such as Interns, Aspire
(welfare) program participants, prison release workers and
volunteers are now being asked. A clear definition needs to be
established to account for all kinds of employees. Our Public Sector
law requires us to count all people who are permitted to work. Maybe
you don't want that inclusive a definition, but it is something to
consider. We had to come up with a specific definition of volunteers
to exclude sporadic volunteers (essentially those not working at a
specific place at a specific time on a regular basis). With some
workplaces utilizing volunteers and with welfare reform changes
expected, you may want to prepare for these questions now.
These workers should be evaluated just as any other worker. If a
student or intern is working as an unpaid volunteer, he or she would
not be an employee under the OSH Act and an injury or illness of that
employee would not be entered into the Part 1904 records. If the worker
is receiving compensation for services, and meets the common law test
discussed earlier, then there is an employer-employee relationship for
the purposes of OSHA recordkeeping. The employer in that relationship
must evaluate any injury or illness at the establishment and enter it
into the records if it meets the recording criteria.
Section 1904.32 Annual Summary
At the end of each calendar year, section 1904.32 of the final rule
requires each covered employer to review his or her OSHA 300 Log for
completeness and accuracy and to prepare an Annual Summary of the OSHA
300 Log using the form OSHA 300-A, Summary of Work-Related Injuries and
Illnesses, or an equivalent form. The summary must be certified for
accuracy and completeness and be posted in the workplace by February 1
of the year following the year covered by the summary. The summary must
remain posted until April 30 of the year in which it was posted.
Preparing the Annual Summary requires four steps: reviewing the
OSHA 300 Log, computing and entering the summary information on the
Form 300-A, certification, and posting. First, the employer must review
the Log as extensively as necessary to make sure it is accurate and
complete. Second, the employer must total the columns on the Log;
transfer them to the summary form; and enter the calendar year covered,
the name of the employer, the name and
[[Page 6043]]
address of the establishment, the average number of employees on the
establishment's payroll for the calendar year, and the total hours
worked by the covered employees. If there were no recordable cases at
the establishment for the year covered, the summary must nevertheless
be completed by entering zeros in the total for each column of the OSHA
300 Log. If a form other than the OSHA 300-A is used, as permitted by
paragraph 1904.29(b)(4), the alternate form must contain the same
information as the OSHA 300-A form and include identical statements
concerning employee access to the Log and Summary and employer
penalties for falsifying the document as are found on the OSHA 300-A
form.
Third, the employer must certify to the accuracy and completeness
of the Log and Summary, using a two-step process. The person or persons
who supervise the preparation and maintenance of the Log and Summary
(usually the person who keeps the OSHA records) must sign the
certification statement on the form, based on their direct knowledge of
the data on which it was based. Then, to ensure greater awareness and
accountability of the recordkeeping process, a company executive, who
may be an owner, a corporate officer, the highest ranking official
working at the establishment, or that person's immediate supervisor,
must also sign the form to certify to its accuracy and completeness.
Certification of the summary attests that the individual making the
certification has a reasonable belief, derived from his or her
knowledge of the process by which the information in the Log was
reported and recorded, that the Log and summary are ``true'' and
``complete.''
Fourth, the Summary must be posted no later than February 1 of the
year following the year covered in the Summary and remain posted until
April 30 of that year in a conspicuous place where notices are
customarily posted. The employer must ensure that the Summary is not
defaced or altered during the 3 month posting period.
Changes from the former rule. Although the final rule's
requirements for preparing the Annual Summary are generally similar to
those of the former rule, the final rule incorporates four important
changes that OSHA believes will strengthen the recordkeeping process by
ensuring greater completeness and accuracy of the Log and Summary,
providing employers and employees with better information to understand
and evaluate the injury and illness data on the Annual Summary, and
facilitating greater employer and employee awareness of the
recordkeeping process.
1. Company Executive Certification of the Annual Summary. The final
rule carries forward the proposed rule's requirement for certification
by a higher ranking company official, with minor revision. OSHA
concludes that the company executive certification process will ensure
greater completeness and accuracy of the Summary by raising
accountability for OSHA recordkeeping to a higher managerial level than
existed under the former rule. OSHA believes that senior management
accountability is essential if the Log and Annual Summary are to be
accurate and complete. The integrity of the OSHA recordkeeping system,
which is relied on by the BLS for national injury and illness
statistics, by OSHA and employers to understand hazards in the
workplaces, by employees to assist in the identification and control of
the hazards identified, and by safety and health professionals
everywhere to analyze trends, identify emerging hazards, and develop
solutions, is essential to these objectives. Because OSHA cannot
oversee the preparation of the Log and Summary at each establishment
and cannot audit more than a small sample of all covered employers'
records, this goal is accomplished by requiring employers or company
executives to certify the accuracy and completeness of the Log and
Summary.
The company executive certification requirement imposes different
obligations depending on the structure of the company. If the company
is a sole proprietorship or partnership, the certification may be made
by the owner. If the company is a corporation, the certification may be
made by a corporate officer. For any management structure, the
certification may be made by the highest ranking company official
working at the establishment covered by the Log (for example, the plant
manager or site supervisor), or the latter official's supervisor (for
example, a corporate or regional director who works at a different
establishment, such as company headquarters).
The company executive certification is intended to ensure that a
high ranking company official with responsibility for the recordkeeping
activity and the authority to ensure that the recordkeeping function is
performed appropriately has examined the records and has a reasonable
belief, based on his or her knowledge of that process, that the records
are accurate and complete.
The final rule does not specify how employers are to evaluate their
recordkeeping systems to ensure their accuracy and completeness or what
steps an employer must follow to certify the accuracy and completeness
of the Log and Summary with confidence. However, to be able to certify
that one has a reasonable belief that the records are complete and
accurate would suggest, at a minimum, that the certifier is familiar
with OSHA's recordkeeping requirements, and the company's recordkeeping
practices and policies, has read the Log and Summary, and has obtained
assurance from the staff responsible for maintaining the records (if
the certifier does not personally keep the records) that all of OSHA's
requirements have been met and all practices and policies followed. In
most if not all cases, the certifier will be familiar with the details
of some of the injuries and illnesses that have occurred at the
establishment and will therefore be able to spot check the OSHA 300 Log
to see if those cases have been entered correctly. In many cases,
especially in small to medium establishments, the certifier will be
aware of all of the injuries and illnesses that have been reported at
the establishment and will thus be able to inspect the forms to make
sure all of the cases that should have been entered have in fact been
recorded.
The certification required by the final rule may be made by signing
and dating the certification section of the OSHA 300-A form, which
replaces the summary portion of the former OSHA 200 form, or by signing
and dating a separate certification statement and appending it to the
OSHA Form 300-A. A separate certification statement must contain the
identical penalty warnings and employee access information as found on
the OSHA Form 300-A. A separate statement may be needed when the
certifier works at another location and the certification is mailed or
faxed to the location where the Summary is posted.
The certification requirement modifies the certification provision
of the former rule (former paragraph 1904.5(c)), which required a
certification of the Annual Summary by the employer or an officer or
employee who supervised the preparation of the Log and Summary. The
former rule required that individual to sign and date the year-end
summary on the OSHA Form 200 and to certify that the summary was true
and complete. Alternatively, the recordkeeper could, under the former
rule, sign a separate certification statement rather than signing the
OSHA form.
Both the former rule (paragraph 1904.9 (a) and (b)) and the
proposed rule (paragraph 1904.16(a) and (b))
[[Page 6044]]
contained penalty provisions for the falsification of OSHA records or
for the failure to record recordable cases; these provisions do not
appear in the final rule. OSHA believes, based on the record and the
Agency's own recordkeeping and audit experience, that this deletion
will not affect the accuracy or completeness of the records, employers'
recording obligations, or OSHA's enforcement powers. The criminal
penalties referred to in paragraph 1904.9(a) of the former rule are
authorized by section 17(g) of the OSH Act and do not need to be
repeated in the final rule to be enforced. Similarly, the
administrative citations and penalties referred to in paragraph
1904.9(b) of the former rule are authorized by sections 9 and 17 of the
OSH Act. The warning statement on the final OSHA 300-A form or its
equivalent should be sufficient to remind those who certify the forms
of their legal obligations under the Act.
OSHA has revised the final rule's certification requirement in
response to questions about its usefulness raised in the preamble to
the proposal (61 FR 4047). In particular, the proposal noted that the
person responsible for preparing the Log and Summary might, in some
cases, have an incentive not to report injuries and illnesses, which
would, of course, impair the accuracy of the Log. OSHA stated that
``some employers mistakenly believe that recording a case implies fault
on the part of the employer'' and thus has the potential to adversely
affect their ability to defend workers' compensation claims or
lawsuits. Some employers also have established ``accountability
systems'' that are based on the number of OSHA recordables, i.e., that
evaluate the safety performance of managers by the number of injuries
and illnesses reported by workers in the departments or organizational
units under their control. OSHA noted that individuals whose
performance, promotions, compensation, and/or bonuses depend on the
achievement of reduced injury and illness rates ``may be discouraged
from fully and accurately recording injuries and illnesses (61 FR 4047)
* * *'' Managers and supervisors being evaluated by the numbers'' also
may have an incentive to avoid recording as many cases as possible.
OSHA proposed to change the former rule's certification
requirements. In the proposed rule, OSHA proposed to require that a
responsible company official certify to the accuracy and completeness
of the Log and Summary. According to the proposal, that person would
sign the summary to certify that ``he or she has examined the OSHA
Injury and Illness Log and Summary and that the entries on the form and
the year-end summary are true, accurate, and complete'' (61 FR 4060).
``Responsible company official'' was defined in the proposal as ``an
owner of the company, the highest ranking company official working at
the establishment, or the immediate supervisor of the highest ranking
company official working at the establishment'' (61 FR 4059). By
requiring a high level individual to sign each establishment Log
certification, the proposal sought to create an incentive for that
official to take steps to ensure the accuracy and completeness of the
information on the log or face penalties for failing to do so.
Several commenters (see, e.g., Exs. 15: 50, 105, 415) confirmed
that an underreporting incentive did exist under the former rule's
certification system. For example, the International Chemical Workers'
Union (Ex. 15: 415) and Mr. George Cook (Ex. 15: 50) noted the
potential for this problem to arise in their comments to the record.
Harsco Corporation (Ex. 15: 105) pointed out that a contractor's
accident rate will affect its ability to bid for jobs, and there is
thus an incentive to keep rates low by not recording all injuries and
illnesses.
There were many responses to the proposed change in the
certification requirement. In general, a broad cross-section of
commenters (see, e.g., Exs. 15: 70, 127, 136, 137, 141, 153, 163, 170,
224, 266, 278, 324, 371, 407, 418, 429) gave unqualified support to the
proposal's certification by a ``responsible corporate official.''
Typical of these comments was the New Jersey Department of Labor's
statement that the proposed change would result in heightened awareness
of health and safety problems by management, enhanced efforts to reduce
workplace injuries and illnesses, and more accurate reporting (Ex. 15:
70). The AFL-CIO noted that requiring top corporate officials to be
responsible ``represents a fundamental change in the importance of data
gathering in the workplace'' (Ex. 15: 418).
A number of commenters expressed reservations about the definition
of ``responsible corporate official'' and the extent of the
responsibility and/or legal liability such certification might impose
on certifying officials. Some commenters argued that it was
unreasonable for a high corporate official, who might not be familiar
with the recordkeeping function and its legal requirements, to certify
to the accuracy and completeness of the Log and Summary. These
commenters argued that it would be more appropriate for a high level
management official, industrial hygienist, or director of health and
safety to certify the Log and Summary because these individuals are
already responsible for ensuring the accuracy and completeness of the
Log, especially in multi-establishment businesses where recordkeeping
is centralized (see, e.g., Exs. 21; 25; 27; 33; 15: 44, 48, 65, 122,
132, 133, 147, 154, 161, 169, 174, 176, 193, 194, 199, 203, 231, 242,
263, 269, 270, 272, 273, 283, 284, 289, 290, 292, 295, 297, 299, 301,
304, 305, 317, 325, 329, 332, 341, 345, 346, 348, 364, 368, 377, 385,
386, 387, 403, 405, 410, 412, 413, 420, 425, 442). Two commenters
suggested that, if a high level official were to be responsible for the
certification, he or she should only be required to certify that the
``[c]ompany has * * * taken reasonable steps to ensure the accuracy of
the logs'' (Exs. 15: 200, 442). Several representatives from the
construction industry (see, e.g., Exs. 15: 126, 342, 355) urged OSHA to
make sure that any certification provision reflect the operation of
multi-employer construction sites. These commenters recommended that
the certifying official either be the senior official on-site or that
person's immediate superior.
Other employer representatives believed that the broad nature of
the proposed certification could make the certification vulnerable to
legal liability (see, e.g., Exs. 20; 33; 15: 122, 133, 147, 149, 176,
193, 199, 201, 205, 220, 231, 236, 272, 273, 284, 290, 292, 297, 301,
304, 313, 318, 320, 335, 345, 346, 352, 353, 368, 373, 375, 389, 396,
424, 425, 427, 428, 430). The National Association of Manufacturers
(Ex. 15: 305), in a statement that is representative of the views of
these commenters, said that:
[t]he language of the certification is totally impractical and
unreasonable in that it is written as a certification of absolute
completeness and accuracy. This creates such an unreasonably high
standard that no one should legitimately be asked or required to
sign it. As a general rule, we believe an individual would be
expected to have significantly better knowledge of the information
on his/her personal income tax return than on the OSHA Form 300; yet
even the certification on the personal income tax return includes
the language ``to the best of my knowledge and belief.'' This clause
must be added to the certifying language.
Numerous commenters favored a dual level of accountability, with a
first level certification by the ``responsible company official,'' as
defined in the proposal, and a second level certification required by a
high level corporate official with safety and health responsibilities
(see, e.g., Exs. 20, 15: 65, 89, 182, 369, 380, 409, 415). These
[[Page 6045]]
participants recommended that OSHA require a more senior official, at a
corporate level beyond the establishment keeping the records,
additionally certify that the company had made a good faith effort to
ensure accurate and complete records for all of the employer's
establishments. The American Automobile Manufacturers Association
(AAMA) stated that it:
[a]grees that a corporate official responsible for health and
safety and the highest ranking company official at an establishment
should certify that a good faith effort for proper recordkeeping has
taken place, and the individual responsible for day-to-day OSHA
recordkeeping should certify the accuracy and completeness of the
log (Ex. 15-409).
OSHA has not adopted a dual certification requirement because one
certification should be enough to make sure that the records are
accurate. In addition, a dual certification requirement would increase
the complexity and burdens of the final rule, without significantly
adding incentives for employers to keep better records.
Some commenters wished OSHA to maintain the former rule's approach
to certification. These participants were generally skeptical of senior
management certification, characterizing it as impractical, onerous,
burdensome, unrealistic, intrusive, and infringing on the prerogative
of management to designate the appropriate person(s) to certify the Log
(see, e.g., Exs. 15: 9, 15, 39, 45, 60, 89, 96, 132, 149, 156, 183,
184, 185, 195, 200, 201, 203, 204, 213, 218, 225, 239, 259, 260, 262,
265, 271, 272, 303, 304, 313, 317, 318, 320, 332, 335, 338, 344, 352,
353, 360, 373, 378, 389, 390, 392, 401, 406, 414, 423, 424, 427, 428,
430, 431). According to the Battery Council International, ``[t]he
threat of civil and criminal liability provides more than enough
incentive to ensure the accuracy of the recordkeeping Log and Summary''
(Ex. 15: 161). Mallinckrodt Chemical, Inc., and the Interconnecting and
Packaging Electronic Circuits Corporation echoed this belief (Exs. 15:
69, 172). The Vulcan Chemical Company went so far as to recommend that
OSHA delete certification requirements completely and rely only on the
proposed penalty provisions (Ex. 15: 171).
Most commenters opposing high-level management certification argued
that management-designated, well-qualified, lower level administrative
personnel perform the recordkeeping function and can therefore best
certify to the accuracy of the OSHA 300 Log (see, e.g., Exs. 15: 69,
220, 225, 227, 281, 297, 305, 313, 352, 353). According to the American
Textile Manufacturers Institute (Ex. 15: 156), ``[a] corporate official
(i.e., safety director, human resources director, Chief Executive
Officer) should never be required to certify the accuracy of the logs.
Commenters also stated that placing the responsibility on senior
management would increase the economic and paperwork burden of the rule
because these individuals would need additional training and would
conduct audits, particularly at businesses with many work locations
(see, e.g., Exs. 15 : 213, 259, 375, 395). A few commenters stated that
none of OSHA's proposed approaches, including the Log and Summary
certification, would significantly decrease the financial incentives
employers have for underreporting (see, e.g., Exs. 15: 39, 199, 406).
The Ogletree, Deakins, Nash, Smoak & Stewart Coalition (ODNSSC) said
that ``[i]n the final analysis, the one measure that will have the
greatest effect in fostering the maintenance of accurate logs is
finally within the grasp of all interested parties: the promulgation of
a final rule * * * that is well conceived, makes intuitive and
analytical sense, and as such is largely accepted within the regulated
community'' (Ex. 15: 406).
Although OSHA believes that the final rule has many features that
will enhance the accuracy and completeness of reporting, the Agency has
included a company executive level of certification in the final rule.
OSHA believes that company executive certification will raise employer
awareness of the importance of the OSHA records, improve their accuracy
and completeness (and thus utility), and decrease any underreporting
incentive.
The final rule therefore requires a higher level company official
to certify to their accuracy and completeness. Thus the final rule
reflects OSHA's agreement with those commenters who stated that the Log
and Summary must be actively overseen by higher level management and
that certification by such an official would make management's
responsibility for the accuracy and completeness of the system clear
(see, e.g., Exs. 20; 15: 31, 65, 70, 89, 127, 136, 137, 141, 153, 163,
170, 182, 224, 266, 278, 324, 369, 371, 380, 396, 407, 409, 415, 418,
429). As the Union Carbide Company stated, having a higher authority
sign a qualified certification of the summary ``[w]ould encourage
activities, such as training and periodic reviews/audits of the logs,
to improve the accuracy and completeness of the data'' (Ex. 15: 396).
In the words of one safety consultant, ``[u]ntil there is a Corporate
Commitment the information will be suspect'' (Ex. 15: 31).
OSHA has slightly modified the proposed definition of responsible
company official in the text of the final rule. In the final rule, the
person who must perform the certification must be a company executive.
OSHA does not believe that an industrial hygienist or a safety officer
is likely to have sufficient authority to ensure the integrity of a
company's recordkeeping process. Therefore, the final rule requires
that the certification be provided by an owner of a sole proprietorship
or partnership, an officer of the corporation, the highest-ranking
official at the establishment, or that person's supervisor. OSHA
believes that this definition takes into account and addresses the
concerns of the comments received from construction employers (see,
e.g., Exs. 15: 105, 126.342, 355).
OSHA is also aware that senior management officials cannot be
expected to have hands-on experience in the details of the logs and
summaries and therefore that their certification attests to the overall
integrity of the recordkeeping process. In response to numerous
comments that certification by the responsible company official be
qualified by the addition to the certification of a clause such as ``to
the best of my knowledge and belief'' (see, e.g., Exs. 20, 15: 122,
193, 199, 205, 220, 272, 273, 290, 305, 320, 335, 375, 396, 424, 425,
427, 428, 430), OSHA has added that the certification required by the
final rule must be based on the official's ``reasonable belief'' that
the Log and Summary are accurate and complete. Certification thus means
that the certifying official has a general understanding of the OSHA
recordkeeping requirements, is familiar with the company's
recordkeeping process, and knows that the company has effective
recordkeeping procedures and uses those procedures to produce accurate
and complete records. The precise meaning of ``reasonable belief'' will
be determined on a case-by-case basis because circumstances vary from
establishment to establishment and decisions about the recordability of
individual cases may differ, depending upon case-specific details.
2. Number of employees and hours worked. Injury and illness records
provide a valuable tool for OSHA, employers, and employees to determine
where and why injuries and illnesses occur, and they are crucial in the
development of prevention strategies. The final rule requires employers
to include in the Annual Summary (the OSHA Form 300-A) the annual
average number of employees covered by the
[[Page 6046]]
Log and the total hours worked by all covered employees. In the
proposal (61 FR 4037), OSHA stated that this information would
facilitate hazard analysis and incidence rate calculations for each
covered establishment. A number of commenters supported the proposed
approach and felt that it would not be a burden on employers, as long
as OSHA granted some flexibility to employers who did not have
sophisticated recordkeeping systems (see, e.g., Exs. 15: 48, 61, 70,
78, 153, 163, 181, 262, 310, 350, 369, 429). For example, the Safety
Services Administration of the City of Mesa, Arizona, a small employer,
stated:
[f]or most employers, the average number of employees is readily
available; the work hour totals may, or may not be so easily
obtained, depending upon the book keeping methodology. For salaried
employees, where detailed hourly records are not maintained, the
2,000 hr/yr would be used in any case. In our case, both employee
numbers and total hours worked is available and presents no problem
(Ex. 15: 48).
Other commenters stated that the total number of hours worked was
readily available through payroll records and that calculating it would
present only a minimal burden, but were opposed to the required
inclusion of the annual average number of employees because this number
is highly variable, difficult to assess where employment is seasonal
and subject to high turnover, and not important to incidence
calculations (see, e.g., Exs. 15: 123, 145, 170, 225, 359, 375).
Other commenters opposed including in the summary the average
number of employees and the total number of hours worked because they
believed the costs of compiling this information would outweigh its
benefits, which they believed to be minimal (see, e.g., Exs. 15: 9, 44,
184, 195, 205, 214, 247, 272, 303, 308, 313, 335, 341, 352, 353, 412,
423, 431), especially in industries, like health care, with high
turnover rates (Ex. 15: 341). One company estimated its cost of
collecting data on total hours worked to be $200,000 to $300,000 and to
take four to six months (Ex. 15: 423). Sprint Corporation proposed that
``[i]ncidence rates continue to be calculated on an exception basis by
the compliance officer at the time of the inspection. Larger employers,
like Sprint, maintain such incidence rates by department or business
unit and not by physical location as broken out on the OSHA log'' (Ex.
15: 133).
Some commenters recommended alternatives, including permitting
employers to estimate the total number of hours worked, possibly by
using the ANSI Z16.4 standard of 173.33 hours per month per employee,
to minimize the burden (see, e.g., Exs. 15: 272, 303, 335, 359) or
excluding establishments with fewer than 100 employees from the
requirement altogether (Ex. 15: 375).
OSHA's view is that the value of the total hours worked and average
number of employees information requires its inclusion in the Summary,
and the final rule reflects this determination. Having this information
will enable employers and employees to calculate injury and illness
incidence rates, which are widely regarded as the best statistical
measure for the purpose of comparing an establishment's injury and
illness experience with national statistics, the records of other
establishment, or trends over several years. Having the data available
on the Form 300-A will also make it easier for the employer to respond
to government requests for the data, which occurs when the BLS and OSHA
collect the data by mail, and when an OSHA or State inspector visits
the facility. In particular, it will be easier for the employer to
provide the OSHA inspector with the hours worked and employment data
for past years.
OSHA does not believe that this requirement creates the time and
cost burden some commenters to the record suggested, because the
information is readily available in payroll or other records required
to be kept for other purposes, such as income tax, unemployment, and
workers' compensation insurance records. For the approximately 10% of
covered employers who participate in the BLS's Annual Survey of
Occupational Injuries and Illnesses, there will be no additional burden
because this information must already be provided to the BLS. Moreover,
the rule does not require employers to use any particular method of
calculating the totals, thus providing employers who do not maintain
certain records--for example the total hours worked by salaried
employees--or employers without sophisticated computer systems, the
flexibility to obtain the information in any reasonable manner that
meets the objectives of the rule. Employers who do not have the ability
to generate precise numbers can use various estimation methods. For
example, employers typically must estimate hours worked for workers who
are paid on a commission or salary basis. Additionally, the
instructions for the OSHA 300-A Summary form include a worksheet to
help the employer calculate the total numbers of hours worked and the
average number of.
3. Extended posting period. The final rule's requirement increasing
the summary Form 300-A posting period from one month to three months is
intended to raise employee awareness of the recordkeeping process
(especially that of new employees hired during the posting period) by
providing greater access to the previous year's summary without having
to request it from management. The additional two months of posting
will triple the time employees have to observe the data without
imposing additional burdens on the employer. The importance of employee
awareness of and participation in the recordkeeping process is
discussed in the preamble to sections 1904.35 and 1904.36.
The requirement to post the Summary on February 1 is unchanged from
the posting date required by the former rule. As OSHA stated in the
proposal (61 FR 4037) ``one month (January) is a reasonable time period
for completing the summary section of the form.'' Only three commenters
disagreed (see, e.g., Exs. 15: 347, 402, 409); two of these commenters
suggested that 60 days were required to do so (Exs. 15: 347, 409). OSHA
believes that, since the required process is simple and
straightforward, 30 days will be sufficient. Delaying the posting any
further would mean that employers would not have access to the Summary
for a longer period, thus diminishing the timeliness of the posted
information.
OSHA's proposal would have required employers to post the summary
for one year, based on the Agency's preliminary conclusion that
continuous posting presented no additional burden for employers and
would be beneficial to employees (61 FR 4037-4038). The one-year
posting period was unconditionally supported by a number of commenters
(see, e.g., Exs. 15: 70, 153, 154, 199, 277) and was supported by
others on the condition that no updating of the posted summary be
required (see, e.g., Exs. 15: 262, 288, 435). The AAMA and the Ford
Motor Co. supported a ten-month posting period (from March 1 to
December 31) (Exs. 15: 347, 409).
A number of commenters stated that a one-year posting period was
too long and would not be justified by the minimal benefits to be
achieved by such year-long posting. Some of these participants
contended that the Annual Summary does not continue to provide useful,
accurate information after its initial posting and will not enhance
employee awareness because, although posting of a new summary is
noticed when it is done, it becomes ``wallpaper'' shortly thereafter,
especially if it is on a cluttered bulletin board (see, e.g., Exs. 33;
15: 9, 23, 39, 40, 45, 60, 66, 98, 107, 119, 121, 122, 176, 203, 204,
231, 232,
[[Page 6047]]
273, 281, 289, 301, 317, 322, 329, 335, 341, 344, 347, 348, 356, 358,
381, 389, 399, 405, 409, 414, 428, 430, 431, 434, 441). For example,
the Witco Corporation predicted that the 12-month posting requirement
``[w]ill result in no one noticing the old Log's removal and the
posting of a new one'' (Ex. 15: 107). One commenter even suggested that
continuous posting ``[u]ndermines the Agency's intent in bringing the
information to employees'' attention'' (Ex. 15: 428).
Other commenters argued that year-long posting was excessive
because it created too great a burden on employers. They stated that
extended posting would require employers to make periodic inspections
to ensure that the summary had not been taken down, covered, or defaced
(see, e.g., Exs. 37, 15: 57, 80, 97, 151, 152, 179, 180, 272, 303, 335,
346, 381, 410, 431), and that this additional administrative burden,
especially to employers with large establishments that now voluntarily
post Logs in multiple locations, could be significant (see, e.g., Exs.
15: 97, 184, 239, 272, 283, 297, 303, 304, 305, 348, 395, 396, 410,
424, 430). One suggestion made by commenters to minimize this burden
was to post the Summary for one month at the establishment and then at
a central location for the remaining eleven months (see, e.g., Exs. 15:
151, 152, 179, 180) or to permit electronic posting (Ex. 15: 184).
Other employers opposed the extended posting period on the grounds that
a one-month period posting was sufficient to achieve OSHA's objectives
(see, e.g., Exs. 15: 9, 15, 39, 45, 49, 57, 69, 74, 80, 89, 97, 98,
116, 119, 133, 163, 182, 184, 195, 203, 287, 289, 335, 356, 396, 424,
427, 428, 441, 443), especially since employees have access to the
summary at any time during the retention period (see, e.g., Exs. 15: 9,
15, 69, 80, 98, 119, 136, 137, 141, 161, 200, 204, 224, 225, 266, 272,
278, 303, 312, 317, 324, 348, 374, 395, 405, 406, 410, 412, 431). Still
other commenters thought the one-year period was too long but supported
a two or even three-month posting period as adding little, if any,
additional burden (see, e.g., Exs. 37, 15: 78, 89, 199, 235, 256, 277).
After a review of all the comments received and its own extensive
experience with the recordkeeping system and its implementation in a
variety of workplaces, OSHA has decided to adopt a 3-month posting
period. The additional posting period will provide employees with
additional opportunity to review the summary information, raise
employee awareness of the records and their right to access them, and
generally improve employee participation in the recordkeeping system
without creating a ``wallpaper'' posting of untimely data. In addition,
OSHA has concluded that any additional burden on employers will be
minimal at best and, in most cases, insignificant. All the final rule
requires the employer to do is to leave the posting on the bulletin
board instead of removing it at the end of the one-month period. In
fact, many employers preferred to leave the posting on the bulletin
board for longer than the required one-month period in the past, simply
to provide workers with the opportunity to view the Annual Summary and
increase their awareness of the recordkeeping system in general and the
previous year's injury and illness data in particular. OSHA agrees that
the 3-month posting period required by the final rule will have these
benefits which, in the Agency's view, greatly outweigh any minimal
burden that may be associated with such posting. The final rule thus
requires that the Summary be posted from February 1 until April 30, a
period of three months; OSHA believes that the 30 days in January will
be ample, as it has been in the past, for preparing the current year's
Summary preparatory to posting.
4. Review of the records. The provisions of the final rule
requiring the employer to review the Log entries before totaling them
for the Annual Summary are intended as an additional quality control
measure that will improve the accuracy of the information in the Annual
Summary, which is posted to provide information to employees and is
also used as a data source by OSHA and the BLS. Depending on the size
of the establishment and the number of injuries and illnesses on the
OSHA 300 Log, the employer may wish to cross-check with any other
relevant records to make sure that all the recordable injuries and
illnesses have been included on the Summary. These records may include
workers' compensation injury reports, medical records, company accident
reports, and/or time and attendance records.
OSHA did not propose that any auditing or review provisions be
included in the final rule. However, several commenters suggested that
OSHA include requirements that would require employers to audit the
OSHA 300 Log information (see, e.g., Exs. 35; 36; 15: 31, 310, 418,
438). For example, the United Auto Workers (Ex. 15: 438) stated:
[t]he most important change OSHA could make in recordkeeping rules
would be to require employers to conduct an independent audit of the
completeness of the record. The purpose of the audit would be to
determine that no case went unrecorded, and that no disabling injury
or illness was mislabeled as non lost workday. Such requirements
were not in the proposal, but are desperately needed.
Linda Ballas (Ex. 15: 31), a safety consultant who performs audits
of OSHA injury and illness records for employers, added [u]ntil there
is Corporate Commitment the information will be suspect. * * * Audits
are necessary.'' In fact, the Laborers' Health & Safety Fund of North
America (Ex. 15: 310) recommended biennial third-party audits.
In the final rule, OSHA has not adopted regulatory language that
requires formal audits of the OSHA Part 1904 records. However, the
final rule does require employers to review the OSHA records as
extensively as necessary to ensure their accuracy. The Agency believes
that including audit provisions is not necessary because the high-level
certification requirement will ensure that recordkeeping receives the
appropriate level of management attention.
Some companies, especially larger ones, may choose to conduct
audits, however, to ensure that the records are accurate and complete;
many companies commented that they already perform records audits as
part of their company's safety and health program. For example, the
Ford Motor Company (Ex. 15: 347), Dow Chemical Company (Ex. 15: 335),
and Brown & Root (Ex. 15: 423) reported that they audit their injury
and illness records on a regular basis. Also, three commenters to the
record were safety and health consultants who provide injury and
illness auditing services to employers, in addition to other safety and
health services (Exs. 15: 31, 345, 406). In the past, OSHA has entered
into a number of corporate-wide settlement agreements with individual
companies that included third-party audits of the employers' injury and
illness records (e.g., Ford, General Motors, Union Carbide). OSHA
expects that many of these companies will continue to audit their
injury and illness records and their recordkeeping procedures, and to
take any other quality control measures they believe to be necessary to
ensure the quality of the records. However, OSHA has not required
records audits in the final rule because the Agency believes that the
combination of final rule requirements providing for employee
participation (Sec. 1904.35), protecting employees against
discrimination for reporting work-related injuries and illnesses to
their employer (section
[[Page 6048]]
1904.36), requiring review by employers of the records at the end of
the year, and mandating two level certification of the records will
provide the quality control mechanisms needed to improve the quality of
the OSHA records.
Deletions from the former rule. Except for the foregoing changes
discussed above, the final rule is generally similar to the former rule
in its requirements for preparing, certifying and posting of the year-
end Summary. However, some provisions of the former rule related to the
Summary have not been included in the final rule. For example, the
former rule required employers with employees who did not report to or
work at a single establishment, or who did not report to a fixed
establishment on a regular basis, to hand-deliver or mail a copy of the
Summary to those employees. OSHA proposed to maintain this requirement,
which was supported by one commenter (Ex. 15: 298) but opposed by many
others because of the administrative cost of preparing such mailings,
especially in high turnover industries like construction (see, e.g.,
Exs. 15: 116, 132, 199, 200, 201, 312, 322, 329, 335, 342, 344, 355,
375, 395, 430, 440, 441). These commenters pointed out that employees
who do not report to a single establishment still have the right to
view the summary at a central location and to obtain copies of it.
In the final rule, OSHA has decided not to include the proposed
requirement for individual mailings as unnecessary because final
paragraph 1904.30(b)(3) requires that every employee be linked, for
recordkeeping purposes, to at least one establishment keeping a Log and
Summary that will be prepared and posted. In other words, every
employee covered by the rule will have his or her injuries or illnesses
recorded on a particular establishment's Log, even if that employee
does not routinely report to that establishment or is temporarily
working there. Thus every employee will have 3-month access to the Log
and Summary at the posted location or may obtain a copy the next
business day under paragraph 1904.35(b)(2)(iii), making the need for
hand-delivery or mailing unnecessary.
Under the former rule, multi-establishment employers who closed an
establishment during the year were not obligated to post an Annual
Summary for that establishment. OSHA believes that this requirement is
also unnecessary because it is obvious in such cases that there is no
physical location at which to post the Summary. Closing an
establishment does not, however, relieve an employer of the obligation
to prepare and certify the Summary for whatever portion of the calendar
year the establishment was operating, retain the Summary, and make the
Summary accessible to employees and government officials.
Other comments. Some commenters availed themselves of the
opportunity to comment on portions of the recordkeeping rule that OSHA
did not propose to change. Some of these comments addressed the issue
of whether to post a year-end Summary at all. Posting the Summary was
almost unanimously supported, but a few commenters opposed posting on
the grounds that posting had ``[a] de minimus effect on employee safety
and accident prevention'' (Ex. 15: 46), was not an accurate measure of
current safety and health conditions (see, e.g., Exs. 15: 95, 126), or
was unnecessary and burdensome for their industry (e.g, the maritime
industry (Ex. 15: 95), construction industry (Ex. 15: 126), and retail
store industry (Ex. 15: 367)). Although opposed to the posting of a
year-end summary, one company urged OSHA to require that year-end
summaries be submitted to OSHA (Ex. 15: 63).
Alternatives to posting were suggested by some commenters. One
advocated annual informational meetings with employees instead (Ex. 15:
126), while others supported mailing the summary to each employee and
providing the summary to new employees at orientation (Ex. 15: 154) or
by e-mail (Ex. 15: 156). Three employers recommended excluding small
establishments (fewer than 20, 50 or 100 employees) from posting if all
column totals on the Log were zero (see, e.g., Exs. 15: 304, 358, 375).
OSHA believes, based on the record evidence and its own extensive
recordkeeping experience, that posting the Summary is important to
safety and health for all the reasons described above. Some of the
suggested alternatives may be useful, and OSHA encourages employers to
use any practices that they believe will enhance their own and employee
awareness of safety and health issues, provided that they also comply
fully with the final rule's posting requirements.
Another issue raised by commenters was whether multi-establishment
employers should be required to post their summaries in each
establishment, as required by the former rule. Employers generally
supported posting at each establishment, although one commenter opposed
posting at each establishment in multi-establishment companies as
overly burdensome and without benefit (Ex. 15: 356). One construction
employer argued that construction companies should be allowed to post
their summaries at a centralized location and only be required to do so
at the establishment if it was a major construction site in operation
for at least one year (Ex. 15: 116).
OSHA believes that permitting centralized posting only would
substantially interfere with ready employee access to the Log,
especially for employers operating many different sites. The record
does not suggest that retaining the requirement for posting summaries
at each establishment will be burdensome to employers and the final
rule accordingly requires that multi-establishment employers post a
Summary in each establishment relating that establishment's injury and
illness experience for the preceding year.
Section 1904.33 Retention and Updating
Section 1904.33 of the final rule deals with the retention and
updating of the OSHA Part 1904 records after they have been created and
summarized. The final rule requires the employer to save the OSHA 300
Log, the Annual Summary, and the OSHA 301 Incident Report forms for
five years following the end of the calendar year covered by the
records. The final rule also requires the employer to update the
entries on the OSHA 300 Log to include newly discovered cases and show
changes that have occurred to previously recorded cases. The provisions
in section 1904.33 state that the employer is not required to update
the 300A Annual Summary or the 301 Incident Reports, although the
employer is permitted to update these forms if he or she wishes to do
so.
As this section makes clear, the final rule requires employers to
retain their OSHA 300 and 301 records for five years following the end
of the year to which the records apply. Additionally, employers must
update their OSHA 300 Logs under two circumstances. First, if the
employer discovers a recordable injury or illness that has not
previously been recorded, the case must be entered on the forms.
Second, if a previously recorded injury or illness turns out, based on
later information, not to have been recorded properly, the employer
must modify the previous entry. For example, if the description or
outcome of a case changes (a case requiring medical treatment becomes
worse and the employee must take days off work to recuperate), the
employer must remove or line out the original entry and enter the new
information. The employer also has a duty to enter the date of an
employee's return to work or the date of an injured worker's death on
the Form 301; OSHA considers the
[[Page 6049]]
entering of this information an integral part of the recordkeeping for
such cases. The Annual Summary and the Form 301 need not be updated,
unless the employer wishes to do so. The requirements in this section
1904.33 do not affect or supersede any longer retention periods
specified in other OSHA standards and regulations, e.g., in OSHA health
standards such as Cadmium, Benzene, or Lead (29 CFR 1910.1027,
1910.1028, and 1910.1025, respectively).
The proposed rule (61 FR 4030, at 4061) would have reduced the
retention and updating periods for these records to three years. The
language of the proposal was as follows:
(a) Retention. OSHA Forms 300 and 301 or equivalents, year-end
summaries, and injury and illness records for ``subcontractor
employees'' as required under Sec. 1904.17 of this Part shall be
retained for 3 years following the end of the year to which they
relate.
(b) Updating. During the retention period, employers must revise
the OSHA Form 300 or equivalent to include newly discovered
recordable injuries or illnesses. Employers must revise the OSHA
Form 300 to reflect changes which occur in previously recorded
injuries and illnesses. If the description or outcome of a case
changes, remove the original entry and enter the new information to
reflect the more severe consequence. Employers must revise the year-
end summary at least quarterly if such changes have occurred.
Note to Sec. 1904.9: Employers are not required to update OSHA
Form 301 to reflect changes in previously recorded cases.
A number of commenters supported the proposed reduction in the
retention period from five years to three years on the ground that it
would reduce administrative burdens and costs without having any
demonstrable effect on safety and health (see, e.g., Exs. 22, 33, 37,
15: 9, 39, 61, 69, 82, 89, 95, 107, 121, 133, 136, 137, 141, 154, 173,
179, 181, 184, 201, 204, 213, 224, 225, 239, 242, 263, 266, 269, 270,
272, 278, 283, 288, 304, 307, 321, 322, 332, 334, 341, 347, 348, 368,
375, 377, 384, 387, 390, 392, 395, 396, 397, 409, 413, 424, 425, 427,
443). According to the American Iron and Steel Institute (AISI), whose
views were typical of those of this group of commenters, a three-year
retention period:
[s]hould reduce employers' administrative costs without
sacrificing any accuracy in the records of serious illnesses and
injuries. Additional cost savings could be accomplished by limiting
the time period during which an employer must update its injury and
illness records to one year. Such a change would allow employers to
close the books sooner on the health and safety data for a
particular year, without resulting in any loss of accuracy. In
AISI's experience, it is extremely rare that any new information on
an illness or injury surfaces more than a few months after an injury
is recorded, while the administrative cost of having to update a log
and summary is significant for the rare cases that yield information
after one year (Ex. 15: 395).
Several commenters, however, opposed the three-year retention
period and favored the former rule's five-year retention period (see,
e.g., Exs. 20, 24, 15: 153, 350, 359, 379, 407, 415, 429). For example,
the American Industrial Hygiene Association (AIHA) opposed the shorter
retention period, stating:
[A]IHA opposes OSHA's proposed change of OSHA recordkeeping
record retention from 5 to 3 years. There is little work in record
retention, and much information lost if they are discarded. We
recommend maintaining the 5 year retention for OSHA Logs and
supporting 301 forms (Ex. 15: 153.)
According to NIOSH, which favored the longer retention period,
retaining records for five years:
[a]llows the aggregation of data over time that is important for
evaluating distributions of illnesses and injuries in small
establishments with few employees in each department/job title.
Also, the longer retention period is important for the observation
of trends over time in the recognition of new problems and the
evaluation of the effectiveness of intervention in large companies.
In addition, the longer retention period makes possible the
assessment of trends over time or to determine if a current cluster
of cases is unusual for that industry. Reducing the retention period
would thus have a detrimental effect on these types of analysis,
which are frequently used by NIOSH in field studies (Ex. 15: 407).
The American Industrial Hygiene Association recommended a longer
retention period (up to 30 years) for the OSHA 301 form to accommodate
occupational diseases with long latency periods (Ex. 15: 153).
In this final rule, OSHA has decided to retain the five-year
retention requirement for OSHA injury and illness records because the
longer time period will enable employers, employees, and researchers to
obtain sufficient data to discover patterns and trends of illnesses and
injuries and, in many cases, to demonstrate the statistical
significance of such data.
In addition, OSHA has concluded that the five-year retention period
will add little additional cost or administrative burden, since
relatively few cases will surface more than three years after the
injury and illness occurred, and the vast majority of cases are
resolved in a short time and do not require updating. In addition, OSHA
believes that other provisions of the final rule (e.g., computerization
of records, centralized recordkeeping, and the capping of day counts)
will significantly reduce the recordkeeping costs and administrative
burden associated with the tracking of long-term cases.
The comments on the proposed rule's updating requirements for
individual entries on the OSHA Form 300 reflected a considerable amount
of confusion about the proposed rule's requirements for updating.
Because the proposed rule did not state how frequently the form was to
be updated, some employers interpreted the proposed rule as permitting
quarterly updates (proposed by OSHA for year-end summaries only) during
the retention period (see, e.g., Exs. 15: 9, 61, 89, 170, 181, 288,
389). Some participants argued for even less frequent updating (see,
e.g., Exs. 15: 151, 152, 179, 180, 317, 348). Several employers
recognized that the Log is an ongoing document and that information
must be updated on a regular basis, preferably at the same frequency as
required for initial recording (see, e.g. Exs. 15: 65, 201, 313, 346,
352, 353, 430). The final rule requires Log updates to be made on a
continuing basis, i.e., as new information is discovered. For example,
if a new case is discovered during the retention period, it must be
recorded within 7 calendar days of discovery, the same interval
required for the recording of any new case. If new information about an
existing case is discovered, it should be entered within 7 days of
receiving the new information. OSHA has also decided to require
updating over the entire five-year retention period. OSHA believes that
maintaining consistency in the length of the retention and updating
periods will simplify the recordkeeping process without imposing
additional burdens on employers, because most updating of the records
occurs during the first year following an injury or illness.
The comments OSHA received on the proposed quarterly updating of
year-end summaries were mixed. Some thought that such updating would
provide timely and accurate information to employees at little cost
(see, e.g. Exs. 15: 9, 89, 170, 260, 262, 265, 401), while others saw
the requirement as burdensome and costly and without commensurate value
(see, e.g. Exs. 15: 78, 225, 289, 337, 406, 412). Typical of those
commenters who viewed such a requirement as burdensome was the American
Automobile Manufacturing Association (AAMA), which stated ``[u]pdating
prior year totals on the annual summary(s) once posted, is of little
value. The increase in total numbers is generally so modest as to not
affect the overall magnitude of problems within an establishment'' (Ex.
15: 409).
[[Page 6050]]
Some commenters recommended that the summaries be updated less
frequently, such as semi-annually (see, e.g., Exs. 37, 15: 163). The
National Safety Council (Ex. 15: 359) recommended quarterly updates the
first year and annual updates thereafter. Others interpreted the
proposed rule as requiring quarterly updates and re-certification and
re-posting of the year-end summaries after the posting period had
ended; these commenters opposed such a requirement as being overly
burdensome (see, e.g., Exs. 15: 181, 199, 201, 225, 272, 288, 303, 308,
351). Lucent Technologies (Ex. 15: 272), one of these commenters, urged
OSHA to add the following qualifier to any requirement for the updating
of the annual summary: ``[t]he quarterly update of the summary is for
tracking purposes only and will not require re-certification or
posting.''
After reviewing these comments and the evidence in the record, OSHA
has decided not to require the updating of annual summaries.
Eliminating this requirement from the final rule will minimize
employers' administrative burdens and costs, avoid duplication, and
avoid the complications associated with the certification of updated
summaries, the replacement of posted summaries, and the transmission of
summaries to remote sites. The Agency concludes that updating the OSHA
Form 300 or its equivalent for a period of five years will provide a
sufficient amount of accurate information for recordkeeping purposes.
OSHA is persuaded that updating the year-end summary would provide
little benefit as long as the information from which the summaries are
derived (the OSHA Form 300) is updated for a full five-year period.
Very few comments were received on OSHA's proposed position not to
require the updating of the 301 form. All of the comments received
supported OSHA's proposed approach (see, e.g., Exs. 15: 260, 262, 265,
401). OSHA does not believe that updating the OSHA Form 301 will
enhance the information available to employers, employees, and others
sufficiently to warrant including such a requirement in the final rule.
However, the final rule makes it clear that employers may, if they
choose, update either the Summary or the Form 301.
Section 1904.34 Change in Business Ownership
Section 1904.34 of the final rule addresses the situation that
arises when a particular employer ceases operations at an establishment
during a calendar year, and the establishment is then operated by a new
employer for the remainder of the year. The phrase ``change of
ownership,'' for the purposes of this section, is relevant only to the
transfer of the responsibility to make and retain OSHA-required injury
and illness records. In other words, if one employer, as defined by the
OSH Act, transfers ownership of an establishment to a different
employer, the new entity becomes responsible for retaining the previous
employer's past OSHA-required records and for creating all new records
required by this rule.
The final rule requires the previous owner to transfer these
records to the new owner, and it limits the recording and recordkeeping
responsibilities of the previous employer only to the period of the
prior owner. Specifically, section 1904.34 provides that if the
business changes ownership, each employer is responsible for recording
and reporting work-related injuries and illnesses only for that period
of the year during which each employer owned the establishment. The
selling employer is required to transfer his or her Part 1904 records
to the new owner, and the new owner must save all records of the
establishment kept by the prior owner. However, the new owner is not
required to update or correct the records of the prior owner, even if
new information about old cases becomes available.
The former OSHA injury and illness recording and reporting rule
also required both the selling and buying employers to record and
report data for the portion of the year for which they owned the
establishment. Although the former rule required the purchasing
employer to preserve the records of the prior employer, it did not
require the prior employer to transfer the OSHA injury and illness
records to the new employer. Section 1904.11 of the former rule stated:
Where an establishment has changed ownership, the employer shall
be responsible for maintaining records and filing reports only for
that period of the year during which he owned such establishment.
However, in the case of any change in ownership, the employer shall
preserve those records, if any, of the prior ownership which are
required to be kept under this part. These records shall be retained
at each establishment to which they relate, for the period, or
remainder thereof, required under Sec. 1904.6.
The section of OSHA's proposed rule addressing ``change of
ownership'' mirrored the former rule with only slight language changes,
as follows:
Where an establishment has changed ownership, each employer
shall be responsible for recording and reporting occupational
injuries and illnesses only for that period of the year during which
he or she owned such establishment, but the new owner shall retain
all records of the establishment kept by the prior owner, as
required by Sec. 1904.9(a) of this Part.
Some commenters felt that this proposed section suggested that new
owners could be held responsible for obtaining OSHA injury and illness
records, but that the former owners were not required to provide them
(see, e.g., Exs. 15: 119 298, 323, 356, 397, 323). This interpretation,
which would clearly place the new owner in an untenable position, was
not accurate. Consequently, to avoid confusion in the future, the final
rule requires former owners to transfer their Part 1904 records to the
new owner. This requirement ensures that the continuity of the records
is maintained when a business changes hands.
Sections 1904.35 Employee Involvement, and 1904.36, Prohibition
Against Discrimination
One of the goals of the final rule is to enhance employee
involvement in the recordkeeping process. OSHA believes that employee
involvement is essential to the success of all aspects of an employer's
safety and health program. This is especially true in the area of
recordkeeping, because free and frank reporting by employees is the
cornerstone of the system. If employees fail to report their injuries
and illnesses, the ``picture'' of the workplace that the employer's
OSHA forms 300 and 301 reveal will be inaccurate and misleading. This
means, in turn, that employers and employees will not have the
information they need to improve safety and health in the workplace.
Section 1904.35 of the final rule therefore establishes an
affirmative requirement for employers to involve their employees and
employee representatives in the recordkeeping process. The employer
must inform each employee of how to report an injury or illness, and
must provide limited access to the injury and illness records for
employees and their representatives. Section 1904.36 of the final rule
makes clear that Sec. 11(c) of the Act prohibits employers from
discriminating against employees for reporting work-related injuries
and illnesses. Section 1904.36 does not create a new obligation on
employers. Instead, it clarifies that the OSH Act's anti-discrimination
protection applies to employees who seek to participate in the
recordkeeping process.3\
---------------------------------------------------------------------------
3 The relevant language of Section 11(c) that ``No person
shall discharge or in any manner discriminate against any employee *
* * because of the exercise by such employee on behalf of himself or
others of any rights afforded by this Act.''
---------------------------------------------------------------------------
[[Page 6051]]
Under the employee involvement provisions of the final rule,
employers are required to let employees know how and when to report
work-related injuries and illnesses. This means that the employer must
establish a procedure for the reporting of work-related injuries and
illnesses and train its employees to use that procedure. The rule does
not specify how the employer must accomplish these objectives. The size
of the workforce, employees' language proficiency and literacy levels,
the workplace culture, and other factors will determine what will be
effective for any particular workplace.
Employee involvement also requires that employees and their
representatives have access to the establishment's injury and illness
records. Employee involvement is further enhanced by other parts of the
final rule, such as the extended posting period provided in section
1904.32 and the access statements on the new 300 and 301 forms.
These requirements are a direct outgrowth of the issues framed by
OSHA in the 1996 proposal. In that Federal Register notice, OSHA
proposed an employee access provision, Sec. 1904.11(b), and discussed
the issue at length in the preamble (61 FR 4038, 4047, and 4048). OSHA
did not propose a specific provision for employee involvement in the
reporting process, but raised the issue for discussion in the preamble
(61 FR 4047-48) (see Issue 7. Improving employee involvement). The
proposed rule did contain a reference to section 11(c) of the OSH Act
and its applicability to retaliatory discrimination by employers
against employees who report injuries or illnesses (61 FR 4062).
Specifically, OSHA noted in the NPRM that the Keystone Dialogue
report (Ex. 5) advocated greater employee awareness and involvement in
the recordkeeping process to improve the process and enhance safety and
health efforts in general. There was agreement among members of the
Dialogue group that, for a number of reasons, among them lack of
knowledge, fear of reprisal, and apathy, ``employees often do not seek
access to injury/illness logs (to a sufficient extent) * * * [and] that
overall workplace safety and health would benefit if the information in
the logs were more widely known. * * *'' In this regard, the group made
several recommendations to modify the recordkeeping process and to
involve employees in accident prevention efforts:
OSHA should require employers to notify employees
individually of log entries for each recordable case and their right to
access the records, either by providing them with a copy of the 101
form or the log, by having the employee initial or otherwise
acknowledge the log entry, or by other means negotiated with a
designated employee representative;
Employers should inform employees of an affirmative duty
to bring cases to the employer's attention;
OSHA should add statements to the OSHA recordkeeping forms
101 and 200 that inform employees of their right to access the 200
form;
OSHA should extend the posting period for the 200 form
from one month to 12 months;
Employers should share data with employees and members of
safety committees;
Employers should include more employees in accident
investigations and analyses; and
Detailed survey data systems should be developed so those
employees could assist employers in evaluating accident and exposure
risks associated with their work processes.
OSHA also noted that the General Accounting Office (GAO) report
(Ex. 3) identified employee lack of knowledge and understanding of the
recordkeeping system as one cause of the underreporting of occupational
injuries and illnesses. Based on these and other reports and OSHA's
compliance experience, OSHA requested comment in the proposal on (1)
whether employers should notify employees that their injuries or
illnesses have been entered into the records, (2) if so, how employers
could meet such a requirement and the degree of flexibility OSHA should
give employers, (3) any other ideas for improving employee involvement
in the recordkeeping system, and (4) the costs and benefits of
alternate proposals.
These issues drew considerable comment during the rulemaking. With
few exceptions (see, e.g., Exs. 15: 13, 78, 201, 389, 406), commenters
generally supported increasing employee awareness and involvement in
the recordkeeping process in some form (see, e.g., Exs. 15: 26, 85, 87,
154, 170, 199, 234, 310, 341, 357, 378, 414, 415, 418, 426). For
example, some commenters supported increasing employee awareness by
requiring year-round posting of the OSHA 300 Log (see, e.g., Exs. 15:
154, 170, 199, 415, 426), adding an employee accessibility statement to
the OSHA 300 Log (Ex. 15: 418) , and requiring employee training on
recordkeeping issues and procedures (Ex. 15: 418). A number of
commenters also discussed their own efforts to involve employees in
various recordkeeping activities, such as in filling out accident forms
(see, e.g., Exs. 15: 23, 87, 225), assisting in accident investigations
(see, e.g., Exs. 15: 170, 357, 425), and reviewing accident data (see,
e.g., Exs. 15: 260, 262, 265, 310, 357, 401, 414).
However, most employers, including many who supported various
methods to increase employee awareness and involvement in the process,
opposed a provision requiring employers to notify individual employees
that their injuries have been recorded on the Log because, in their
views, such a requirement would not be likely to achieve OSHA's stated
objective and would be too burdensome and costly for employers (see,
e.g., Exs. 15: 9, 49, 60, 76, 82, 85, 95, 109, 123, 145, 154, 170, 172,
199, 204, 218, 225, 262, 281, 283, 288, 324, 341, 357, 374, 393, 406,
426). Representative of these comments were those of AT&T and Lucent
Technologies, which pointed out that workers are currently required to
be notified about the status of job-related incidents by workers'
compensation regulations and company benefit programs and that separate
notification of an OSHA 300 Log entry would therefore be confusing and
redundant (Exs. 15: 272 and 15: 303).
On the other hand, individual notification of employees was
supported by commenters from the unions and professional organizations,
as well as by some employers (see, e.g., Exs. 15: 156, 181, 233, 247,
310, 350, 369, 414). For example, the American Association of
Occupational Health Nurses (Ex. 15: 181) supported notification ``[a]s
a means of improving employee cooperation and helping employees
recognize their role in working safely and promoting a safe
workplace.'' Those supporting notification suggested that reasonable
means of providing such notification would be direct mail, including a
notice in a pay envelope, or e-mailing a notice and/or the OSHA 301
form to affected employees (see, e.g., Exs. 15: 310, 350).
The National Safety Council's comment (Ex. 15: 359) typifies the
views of these commenters:
[w]e believe that employee involvement in occupational safety
and health issues is highly desirable and that notification is one
aspect of employee involvement. * * * If OSHA were to require
notification, then OSHA should require each employer to create and
comply with its own written notification policy--perhaps subject to
some limitation such as notification within 7-14 days of entry on
the Log. The OSHA compliance officer can verify compliance with the
company's policy on a test basis during an inspection.
[[Page 6052]]
Other commenters (see, e.g., Exs. 15: 234, 283, 348, 426) agreed
that the final rule should not specify how employee notification should
be accomplished. For example, E. I. du Pont de Nemours Corporation (Ex.
15: 348) stated:
[l]egislating how people communicate is confining. Many
companies do a fine job of notifying employees about injuries,
investigation findings, hazard reduction, and ways to contribute to
a safer workplace. Mandating a particular method would be
counterproductive to those organizations already doing a good job. *
* * We suggest that unless full implications of involving employees
in the process are clearly understood (and are not prohibited by any
other federal agency) no guideline should be written--but perhaps
suggestions of ways successful companies have worked with their
employees to improve safety performance could be provided and would
be useful.
One participant suggested a policy of having the injured employee
view the Log to verify its accuracy, noting that ``[t]his procedure * *
* does not appear to place additional costs or undue burden on the
employer'' (Ex. 15: 163). Another recommended a ``face-to-face
advisory'' after an investigation of the accident had been completed
(Ex. 15: 414). The American Textile Manufacturers Institute (Ex. 15:
156) suggested more proactive approaches:
[o]ther methods for improving employee involvement in the injury
and illness recordkeeping system include giving employees accident
causation and prevention information from the records. In addition,
information about departments, accident types, injury types, hazards
and contributing factors, etc., could and should be shared for the
benefit of employer and employees.
The AFL-CIO, United Auto Workers (UAW), Services Employees
International Union (SEIU), and MassCOSH addressed the reporting
disincentive that occurs when employees are threatened, disciplined, or
discriminated against for reporting injuries or illnesses (Exs. 58X,
15: 79, 418, 438). MassCOSH recounted how health care workers were
disciplined for reporting multiple needle stick injuries, and the
United Auto Workers noted that some injury victims were subject to drug
testing (Ex. 15: 438). The unions recommended that discriminatory
treatment of employees who report injuries should be presumed to be a
violation of section 11(c), the anti-discrimination provision of the
OSH Act (see, e.g., Exs. 48, 58X, 15: 379, 418, 438). Specifically, the
UAW (Ex. 15: 438) recommended that the following regulatory text be
added to the final rule:
[r]eporting * * * an injury or illness to management is an
activity in support of the purposes of the Act. Since an injury
report may trigger an employer's responsibility to abate a hazard,
such report is an exercise of an employee's right under the Act and
therefore protected activity under Section 11(c) of the Act. Adverse
action by an employer following such a report shall be presumed to
be discrimination. Examples of adverse action are verbal warnings,
disparate treatment, additional training provided only to injury
victims, disciplinary action of any kind, or drug testing. Suffering
an injury or illness by itself shall not be considered probable
cause to trigger a drug test. An employer may rebut the presumption
of discrimination by showing substantial evidence that injured
employees receive consistent treatment to those who have not
suffered injuries. Granting of prizes or compensation to employees
or groups of employees who do not report injuries is discrimination
against those employees who do report injuries. Therefore, such
programs are violations of Section 11(c) of the Act.
The AFL-CIO (Ex. 15: 4218) supported this language and, along with
the Union of Needletrades, Industrial and Textile Employees (UNITE)
(Ex. 15: 380), also recommended that the rule include a prohibition
against retaliation or discrimination that would be enforced in the
same manner as other violations of the recordkeeping rule (Ex. 15:
418). The AFL-CIO (Ex. 15: 418) also requested that OSHA include in the
final rule:
[a]n affirmative obligation on employers to inform employees of
their right to report injuries or illnesses without fear of reprisal
and to gain access to the Log 300 and to the Form 301 with certain
limitations. At a minimum, the Log 300 should contain a statement,
which informs employees of their rights and protections afforded
under the rule. We recommend the following language be added to the
log: `Employees have a right to report work-related injuries and
illnesses to their employer and to gain access to the Log 300 and
Form 301.'
OSHA has concluded that the rulemaking record overwhelmingly
demonstrates that employee awareness and involvement is a crucial part
of an effective recordkeeping program, as well as an overall safety and
health program. There was little disagreement over this point among
participants in the rulemaking, whether they represented management,
labor, government or professional associations (see, e.g., Exs. 15: 26,
85, 87, 154, 170, 199, 234, 310, 341, 357, 378, 414, 415, 426). There
was also no disagreement with the unions' contention that employees
should not be retaliated against for reporting work-related injuries
and illnesses and for exercising their right of access to the Log and
Incident Report forms. The prominent employee involvement issues in the
rulemaking were thus not whether employee involvement should be
strengthened but to what extent and in what ways employees should be
brought into the process.
In response to this support in the record, OSHA has strengthened
the final rule to promote better injury and illness information by
increasing employees' knowledge of their employers' recordkeeping
program and by removing barriers that may exist to the reporting of
work-related injuries and illnesses. To achieve this goal, the final
rule establishes a simple two-part process for each employer who is
required to keep records, as follows:
--Set up a way for employees to report work-related injuries and
illnesses promptly; and
--Inform each employee of how to report work-related injuries and
illnesses.
OSHA agrees with commenters that employees must know and understand
that they have an affirmative obligation to report injuries and
illnesses. Additionally, OSHA believes that many employers already take
these actions as a common sense approach to discovering workplace
problems, and that the rule will thus, to a large extent, be codifying
current industry practice, rather than breaking new ground.
OSHA is convinced that a performance requirement, rather than
specific requirements, will achieve this objective effectively, while
still giving employers the flexibility they need to tailor their
programs to the needs of their workplaces (see, e.g., Exs. 15: 234,
283, 348, 359, 426). The Agency finds that employee awareness and
participation in the recordkeeping process is best achieved by such
provisions of the final rule as the requirement to extend the posting
period for the OSHA 300 summary, the addition of accessibility
statements on the OSHA Summary, and requirements designed to facilitate
employee access to records.
Many of the specific suggestions made by commenters have not been
adopted in the final rule in favor of the more performance-based
approach to employee involvement supported by so many commenters. For
example, OSHA has decided not to require employers to devise a method
of notifying individual employees when a case involving them has been
entered on the OSHA 300 Log. An employee notification requirement would
be very burdensome and costly, and the potential advantages of an
employee notification system have not been shown in the record for this
rule. Thus, OSHA is not sure that employee notification would improve
the quality of the records enough to justify the
[[Page 6053]]
added burdens. Additionally, employees and their representatives have a
right to access the records under the final rule, if they wish to
review the employer's recording of a given occupational injury or
illness case. OSHA believes that the improved recordkeeping that will
result from the changes being made to the final rule, the enhanced
employee involvement reflected in many of the rule's provisions, and
the prohibition against discrimination will all work in concert to
achieve the goal envisioned by those commenters who urged OSHA to
require employee notification: more and better reporting and recording.
Several of the other suggestions made by participants--such as
including employees in accident investigations and involving employees
in program evaluation--are beyond the scope of the Part 1904
regulation, which simply requires employers to record and report
occupational deaths, injuries and illnesses. OSHA encourages employers
and employees to work together to determine how best to communicate the
information that workers need in the context of each specific
workplace. Moreover, OSHA encourages employers to involve their workers
in activities such as accident investigations and the analysis of
accident, injury and illness data, as suggested by some commenters, but
believes that requiring these activities is beyond the scope of this
rule.
OSHA has also included in the final rule, in section 1904.36, a
statement that section 11(c) of the OSH Act protects workers from
employer retaliation for filing a complaint, reporting an injury or
illness, seeking access to records to which they are entitled, or
otherwise exercising their rights under the rule. This section of the
rule does not impose any new obligations on employers or create new
rights for employees that did not previously exist. In view of the
evidence that retaliation against employees for reporting injuries is
not uncommon and may be ``growing'' (see, e.g., Ex. 58X, p. 214), this
section is intended to serve the informational needs of employees who
might not otherwise be aware of their rights and to remind employers of
their obligation not to discriminate. OSHA concurs with the
International Chemical Workers Union, which, while discussing the issue
of whether personal identifiers should be used on the Log, stated (Ex.
15: 415), ``We have never heard of [personal identifiers] being an
issue for our members, except when management used the reports as an
excuse to discipline `unsafe' workers. The addition of language
notifying workers of their rights to 11(c) protection * * * should help
alleviate any such concerns.''
Employee access to OSHA injury and illness records
The Part 1904 final rule continues OSHA's long-standing policy of
allowing employees and their representatives access to the occupational
injury and illness information kept by their employers, with some
limitations. However, the final rule includes several changes to
improve employees' access to the information, while at the same time
implementing several measures to protect the privacy interests of
injured and ill employees. Section 1904.35 requires an employer covered
by the Part 1904 regulation to provide limited access to the OSHA
recordkeeping forms to current and former employees, as well as to two
types of employee representatives. The first is a personal
representative of an employee or former employee, who is a person that
the employee or former employee designates, in writing, as his or her
personal representative, or is the legal representative of a deceased
or legally incapacitated employee or former employee. The second is an
authorized employee representative, which is defined as an authorized
collective bargaining agent of one or more employees working at the
employer's establishment.
Section 1904.35 accords employees and their representatives three
separate access rights. First, it gives any employee, former employee,
personal representative, or authorized employee representative the
right to a copy of the current OSHA 300 Log, and to any stored OSHA 300
Log(s), for any establishment in which the employee or former employee
has worked. The employer must provide one free copy of the OSHA 300
Log(s) by the end of the next business day. The employee, former
employee, personal representative or authorized employee representative
is not entitled to see, or to obtain a copy of, the confidential list
of names and case numbers for privacy cases. Second, any employee,
former employee, or personal representative is entitled to one free
copy of the OSHA 301 Incident Report describing an injury or illness to
that employee by the end of the next business day. Finally, an
authorized employee representative is entitled to copies of the right-
hand portion of all OSHA 301 forms for the establishment(s) where the
agent represents one or more employees under a collective bargaining
agreement. The right-hand portion of the 301 form contains the heading
``Tell us about the case,'' and elicits information about how the
injury occurred, including the employee's actions just prior to the
incident, the materials and tools involved, and how the incident
occurred, but does not contain the employee's name. No information
other than that on the right-hand portion of the form may be disclosed
to an authorized employee representative. The employer must provide the
authorized employee representative with one free copy of all the 301
forms for the establishment within 7 calendar days.
Employee privacy is protected in the final rule in paragraphs
1904.29(b)(7) to (10). Paragraph 1904.29(b)(7) requires the employer to
enter the words ``privacy case'' on the OSHA 300 Log, in lieu of the
employee's name, for recordable privacy concern cases involving the
following types of injuries and illnesses: (i) an injury from a needle
or sharp object contaminated by another person's blood or other
potentially infectious material; (ii) an injury or illness to an
intimate body part or to the reproductive system; (iii) an injury or
illness resulting from a sexual assault; (iv) a mental illness; (v) an
illness involving HIV, hepatitis; or tuberculosis, or (vi) any other
illness, if the employee independently and voluntarily requests that
his or her name not be entered on the log. Musculoskeletal disorders
(MSDs) are not considered privacy concern cases, and thus employers are
required to enter the names of employees experiencing these disorders
on the log. The employer must keep a separate, confidential list of the
case numbers and employee names for privacy cases.
The employer may take additional action in privacy concern cases if
warranted. Paragraph 1904.29(b)(9) allows the employer to use
discretion in describing the nature of the injury or illness in a
privacy concern case, if the employer has a reasonable basis to believe
that the injured or ill employee may be identified from the records
even though the employee's name has been removed. Only the six types of
injuries and illnesses listed in Paragraph 1904.29(b)(7) may be
considered privacy concern cases, and thus the additional protection
offered by paragraph 1904.29(b)(9) applies only to such cases.
Paragraph 1904.29(b)(10) protects employee privacy if the employer
decides voluntarily to disclose the OSHA 300 and 301 forms to persons
other than those who have a mandatory right of access under the final
rule. The paragraph requires the employer to remove or hide employees'
names or
[[Page 6054]]
other personally identifying information before disclosing the forms to
persons other than government representatives, employees, former
employees or authorized representatives, as required by paragraphs
1904.40 and 1904.35, except in three cases. The employer may disclose
the forms, complete with personally identifying information, (2) only:
(i) to an auditor or consultant hired by the employer to evaluate the
safety and health program; (ii) to the extent necessary for processing
a claim for workers' compensation or other insurance benefits; or (iii)
to a public health authority or law enforcement agency for uses and
disclosures for which consent, an authorization, or opportunity to
agree or object is not required under section 164.512 of the final rule
on Standards for Privacy of Individually Identifiable Health
Information, 45 CFR 164.512.
The former rule. The access provisions of the former recordkeeping
regulation required employers to provide government representatives, as
well as employees, former employees, and their representatives, with
access to the OSHA Logs and year-end summaries, including the names of
all injured and ill employees. The former regulation permitted only
government representatives to have access to the supplemental incident
reports (the former Form 101). Id. Employees, former employees and
their representatives had no right to inspect and copy the incident
reports, although employers were permitted to disclose these forms if
doing so was included in the terms of a collective bargaining
agreement. Id.
The proposed rule. The proposed rule would have required employers
to provide government representatives, and employees, former employees,
and their representatives, with access to the unredacted OSHA Logs and
summaries (61 FR 4061). The proposal would have expanded the scope of
the former rule's access provisions by requiring employers to make
available the incident reports (former OSHA Form 101, renumbered Form
301 in the final rule) to employees, former employees, and their
designated representatives. Id. At the same time, OSHA did not intend
to provide access to the general public. The proposed standard stated:
``OSHA asks for input on possible methodologies for providing easy
access to workers while restricting access to the general public'' (61
FR 4048).
The access provisions of the proposed rule attracted considerable
comment. Many industry representatives argued that disclosure of
information contained in the injury and illness records to employees,
former employees and their representatives would violate an injured or
ill employee's right, under the Constitution and several statutes, to
privacy. On the other hand, a number of commenters emphasized the
importance of the information contained in the records to employees and
unions in their voluntary efforts to uncover and eliminate workplace
safety and health hazards. The following paragraphs discuss privacy and
access issues, and their relationship to the recordkeeping rule.
The Privacy Interest of the Injured or Ill Employee
Whether, and to what extent, the U.S. Constitution grants
individuals a right of privacy in personal information has not been
firmly established. In Whalen v. Roe, 429 U.S. 589 (1977), the Supreme
Court considered whether a New York law creating a central computer
record of the names and addresses of persons taking certain dangerous
but lawful drugs violated the constitutional privacy interest of those
taking the drugs. The Court rejected the claim, primarily because the
state statute required that government employees with access keep the
information confidential and there was no basis to assume that the
requirement would be violated. 429 U.S. at 601, 605-606. Although the
decision does not say whether the Constitution affords protection
against disclosure of personal information, some language suggests that
it does, at least in some circumstances. The Court stated:
The cases sometimes characterized as protecting ``privacy'' have
in fact involved at least two different kinds of interests. One is
the individual interest in avoiding disclosure of personal matters,
and another is the interest in independence in making certain kinds
of decisions. 429 U.S. at 598, 599.
Recognizing that in some circumstances th[e] duty [to avoid
unwarranted disclosure of personal matters] arguably has its roots
in the Constitution, nevertheless New York's statutory scheme, and
its implementing administrative procedures, evidence a proper
concern with, and protection of, the individual's interest in
privacy. 429 U.S. at 605
A subsequent case, Nixon v. Administrator of General Services, 433
U.S. 425 (1977), lends further support to the existence of a
constitutional right of privacy in personal information. At issue in
Nixon was a statute that required the former president to turn over
both public and private papers to an archivist who would review them
and return any personal materials. The Court appeared to acknowledge
that Nixon had a Constitutionally protected privacy right in personal
information. 433 U.S. at 457. It upheld the statute because of the
strong public interest in preserving the documents and because the
statute's procedural safeguards made it unlikely that truly private
materials would be disclosed to the public.
A number of federal circuit courts of appeals, building on Whalen
and Nixon, have held that individuals possess a qualified
constitutional right to confidentiality of personal information,
including medical information. See, e.g., Paul v. Verniero, 170 F.3d
396, 402 (3d Cir. 1999); Norman-Bloodsay v. Lawrence Berkeley
Laboratory, 135 F.3d 1260, 1269 (9th Cir. 1998); F.E.R. v. Valdez, 58
F.3d 1530, 1535 (10th Cir. 1995); John Doe v. City of New York, 15 F.3d
264, 267 (2d Cir. 1994); Fadjo v. Coon, 633 F.2d 1172, 1175 (5th Cir.
1981). See also Anderson v. Romero, 72 F.3d 518, 522 (7th Cir. 1995)
(noting holdings of federal circuits, including seventh circuit,
recognizing qualified constitutional right to confidentiality in
medical records, but finding it ``not clearly established'' that prison
inmate enjoyed such right in 1992).
Of the remaining circuits that have addressed the issue, only the
Sixth has squarely rejected a general constitutional right to
nondisclosure of personal information. E.g., J.P. v. DeSanti, 653 F.2d
1080, 1089 (6th Cir. 1981). Two circuits have expressed skepticism as
to the existence of such a right. See American Federation of Government
Employees, AFL-CIO v. Department of Housing and Urban Development, 118
F.3d 786, 788 (D.C. Cir. 1987) (expressing ``grave doubt'' whether the
Constitution protects against disclosure of personal information);
Borucki v. Ryan, 827 F.2d 836, 845-846 (1st Cir. 1987) (noting lack of
concrete guidance by Supreme Court and disagreement among circuits on
constitutional right of confidentiality). See also Ferguson v. City of
Charleston, S.C., 186 F.3d 469, 483 (4th Cir.1999) (declining to decide
whether individuals possess a general constitutional right to privacy,
noting circuit conflict).
Where the right to privacy is recognized, protection extends to
information that the individual would reasonably expect to remain
confidential. Fraternal Order of Police Lodge No. 5 v. City of
Philadelphia, 812 F.2d 105, 112 (3d Cir. 1987); Mangels v. Pena, 789
F.2d 836, 839 (10th Cir. 1986). ``The more intimate or personal the
information, the more justified is the expectation that it will not be
subject to public scrutiny.'' Fraternal Order of Police, 812 F.2d at
105. Thus, information about the state of a person's health, including
his or her medical
[[Page 6055]]
treatment, prescription drug use, HIV status and related matters, is
entitled to privacy protection. See Paul v. Verniero, 170 F.3d at 401-
402 (collecting cases). See also Doe v. City of New York, 15 F.3d at
267 (``[T]here are few matters that are quite so personal as the status
of one's health, and few matters the dissemination of which one would
prefer to maintain greater control over.'')
The right to privacy is not limited only to medical records. Other
types of records containing medical information are also covered. See,
e.g., Whalen, (computer tapes containing prescription drug
information); Fraternal Order of Police, 812 F.2d at 112 (police
questionnaire eliciting information about employee's physical and
mental condition); Doe v. SEPTA, 72 F.3d 1133 (3d Cir. 1995)
(utilization report listing prescription drugs dispensed to employees
under employer health plan). Moreover, personal financial data and
other types of private information may be subject to privacy protection
in certain cases. See Nixon v. Administrator of General Services, 433
U.S. 425, 455 (1977) (personal matters, including personal finances,
reflected in presidential papers); Paul v. Verniero, 170 F.3d at 404
(home address of sex offender subject to disclosure under ``Megan's
Law''); Fadjo v. Coon, 633 F.2d at 1175 (private details contained in
subpoenaed testimony).
A finding that information is entitled to privacy protection is
only the first step in determining whether a disclosure requirement is
valid. A balancing test must be applied, which weighs the individual's
interest in confidentiality against the public interest in disclosure.
Fraternal Order of Police, 812 F.2d at 113. In evaluating the
government's interest, at least two factors must be considered; the
purpose to be served by disclosure of personal information to
individuals authorized by law to receive it, and the adverse effect of
unauthorized public disclosure of such information. Id. at 117, 118.
Accord, Barry v. City of New York, 712 F.2d 1554, 1561-5162 (2d Cir.
1983). Thus, the fact that disclosure of highly personal information to
parties who have need for it serves an important public interest is not
sufficient justification for a disclosure requirement in the absence of
adequate safeguards against broader public access. Fraternal Order of
Police, 812 F.2d at 118 (``It would be incompatible with the concept of
privacy to permit protected information and material to be publicly
disclosed. The fact that protected information must be disclosed to a
party who has need for it * * * does not strip the information of its
protection against disclosure to those who have no similar need.'')
Balancing the Interests of Privacy and Access
OSHA historically has recognized that the Log and Incident Report
(Forms 300 and 301, respectively) may contain information of a
sufficiently intimate and personal nature that a reasonable person
would wish it to remain confidential. In its 1978 records access
regulation (29 CFR 1910.1020), OSHA addressed the privacy implications
of its decision to grant employee access to the Log. The agency noted
that while Log entries are intended to be brief, they may contain
medical information, including diagnoses of specific illnesses, and
that disclosure to other employees, former employees or their
representatives raised a sensitive privacy issue. 43 FR 31327 (1978).
However, OSHA concluded that disclosure of the Log to current and
former employees and their representatives benefits these employees
generally by increasing their awareness and understanding of the health
and safety hazards to which they are, or have been, exposed. OSHA found
that this knowledge ``will help employees to protect themselves from
future occurrences,'' and that ``[i]n such cases, the right of privacy
must be tempered by the obvious exigencies of informing employees about
the effects of workplace hazards.'' Id. at 31327, 31328.
The proposed rule would have expanded the right of access of
employees, former employees, and their designated representatives
beyond the Log to include the Incident Report (Form 301) (61 FR 4061).
OSHA discussed the potentially conflicting interests involved, and
explained its preliminary balancing of these interests, as follows:
OSHA's historical practice of allowing employee access to all of
the information on the log permits employees and their designated
representatives to be totally informed about the employer's
recordkeeping practices, and the occupational injuries and illnesses
recorded in the workplace. However, this total accessibility may
infringe on an individual employee's privacy interest. At the same
time, the need to access individual's Incident Records to adequately
evaluate the safety and health environment of the establishment has
been expressed.
These two interests--the privacy interests of the individual
employee versus the interest in access to health and safety
information concerning one's own workplace--are potentially at odds
with one another. For injury and illness recordkeeping purposes,
OSHA has taken the position that an employee's interest in access to
health and safety information on the OSHA forms concerning one's own
workplace carries greater weight than an individual's right to
privacy. More complete access to the detailed injury and illness
records has the potential for increasing employee involvement in
workplace safety and health programs and therefore has the potential
for improving working conditions. Analysis of injury and illness
data provides a wealth of information for injury and illness
prevention programs. Analysis by workers, in addition to analyses by
the employer, lead to the potential of developing methods to
diminish workplace hazards through additional or different
perspectives (61 FR 4048).
The proposal asked for comment on alternatives that would preserve
broad access rights while protecting fundamental privacy interests,
including requiring omission of personal identifying information for
certain specific injury and illness cases recorded on the Log, and
restricting non-government access to the Incident Reports to that
portion of the Form 301 that does not contain personal information.
Ibid.
OSHA continues to believe that granting employees a broad right of
access to injury and illness records serves important public interests.
There is persuasive evidence that access by employees and their
representatives to the Log and the Incident Report serves as a useful
check on the accuracy of the employer's recordkeeping and promotes
greater employee involvement in prevention programs that contribute to
safer, more healthful workplaces. For example, the Building and
Construction Trades Department, AFL-CIO stated that:
In the main, the name of the employee is critically important to
understanding and verifying recordable cases. It is often necessary
to speak with the employee to explore the conditions that lead to
the injury or illness, and this is impossible without employee
names. In addition, employees and unions play an important role in
assuring the proper administration of the recordkeeping rule, and
they cannot audit an employer's recordkeeping performance without
having access to employee names, which are necessary to verify that
all properly recordable cases are actually on the log, and to verify
that recorded cases are properly classified. (Ex. 15: 394, p. 35)
Similarly, the American Federation of State, County and Municipal
Employees, AFL-CIO stated that ``[w]hen employees and their
representatives have complete access to the detailed injury and illness
records, employee involvement in workplace safety and health programs
increases. Worker representatives use the data on the forms to assist
in the identification of specific hazards, as well as other
[[Page 6056]]
factors affecting workplace safety'' (Ex.15: 362, p. 7).
The United Auto Workers (Ex. 15: 438) argued that the OSHA 301
incident reports are as valuable as the log is in aiding voluntary
enforcement efforts. The UAW stated:
The OSHA 101 (proposed 301) form is an available data source on
circumstances of an injury or illness. The collected data contains
information for prevention, and also indicates the effectiveness of
management's health and safety program. The information on the OSHA
[301] relevant to hazard identification and control should be made
available to employee representatives on the same basis as they are
made available to OSHA compliance officers. Personal data on
treatment details, physician's name, personal information on
employee can be recorded on the ``other'' side of the form and
blanked out.
The Laborers' Health and Safety Fund (Ex. 15: 310) also emphasized
the practical value of the information contained in the Form 301:
We wholeheartedly support the specific language in the proposed
rule allowing designated representatives access to the OSHA 300 and
301 forms. In a project we administered to determine the major
causes of serious injuries and illnesses in road construction under
a Federal Highway Administration grant, several employers would not
allow access to even information from the injured person's 101
workers compensation equivalent form, because the form contained
other information such as the employee's age and salary. The event
information contained in the 301 form is critical in determining the
hazards and possible preventive measures.
Other commenters also supported the proposal's approach of broadening
employee access to records (see, e.g. Exs. 24; 36; 15: 350, 380, 418).
Recognition of the important purpose served by granting access to
injury and illness records does not end the analysis. The public
interest that is served when information contained in the records is
used to promote safety and health must be balanced against the possible
harm that would result from the misuse of private information. There
are two ways in which harm could occur. First, the information could be
used for unauthorized purposes, such as to harass or embarrass
employees. Second, employees and their representatives with access to
records could, deliberately or inadvertently, disclose private
information to others who have no need for it.
Several commenters indicated concern about the unauthorized
disclosure of private material contained in the injury and illness
records. The joint comments filed by the National Broiler Council and
the National Turkey Council express the view shared by many employers:
There is universal support among employees and employers for the
communication of information about workplace illnesses and injuries.
It also seems apparent that there is universal opposition to the
communication of personal information about individuals involved in
those incidents. There are many circumstances in the workplace where
employees have no desire for fellow employees to know the extent,
description, or type of injury or illness they have incurred. The
reasons for an employee's concern about his or her personal privacy
may vary but almost always find their foundation in very strong and
personal emotions. One example that clearly illustrates this point
would be the employee who has experienced an exposure incident under
the bloodborne pathogens standard. Most people would not want it to
be known that they may have been exposed to HIV, let alone if they
tested positive for HIV. * * * In addition to the concerns about how
this information could be used by other individuals, employers also
have very serious concerns about the misuse of this information by
individuals or organizations for purposes in no way related to the
issue of workplace health and safety (Ex. 15: 193, pp. 4-5).
A number of commenters argued that granting access to the Log and
Incident Report to employees, former employees and their
representatives will deter employees from reporting their injuries and
illnesses, especially in cases involving exposure to bloodborne
pathogens and injuries and illnesses involving reproductive organs
(see, e.g., Exs. 15-185, 15-193, 15-238, 15-239, 15-305). A
representative of the Middlesex Convalescent Center wrote:
[R]equiring employers to disclose personal identifiers (which
include name and occupation) will result in fewer people reporting
injuries and illnesses because employees will feel shame or
embarrassment for being involved in an accident. * * * Additionally,
employees who do not want co-workers to know their physical
handicaps and other personal business will choose not to report
accidents, including those in which the employee is not at fault
(Ex. 15: 23 (emphasis in original)).
There exist at present no mechanisms to protect against unwarranted
disclosure of private information contained in OSHA records. While
Agency policy is that employees and their representatives with access
to records should treat the information contained therein as
confidential except as necessary to further the purposes of the Act,
the Secretary lacks statutory authority to enforce such a policy
against employees and representatives (e.g. 29 U.S.C. Secs. 658, 659)
(Act's enforcement mechanisms directed solely at employers). Nor are
there present here other types of safeguards that have been held to be
adequate to protect against misuse of private material. See Whalen, 589
U.S. at 605 (``The right to collect and use [private] data for public
purposes is typically accompanied by a concomitant statutory or
regulatory duty to avoid unwarranted disclosures.'') See also Fraternal
Order of Police, 812 F.2d at 118 (appropriate safeguards could include
statutory sanctions for unauthorized disclosures, security provisions
to prevent mishandling of files, coupled with express regulatory
prohibition on disclosure, or procedures such as storage of private
material in locked cabinets with automatic removal and destruction
within six months); In re Search Warrant (Sealed), 810 F.2d 67, 72 (3d
Cir. 1987) (district court order that medical records and related
information be kept confidential except as disclosure was reasonably
required in connection with criminal investigation).
The degree of harm that could result from unauthorized use or
disclosure of information on the Log and Incident Report varies
depending upon the nature and sensitivity of the injury or illness
involved. An employee might reasonably have little to fear from
disclosure of a garden-variety injury or illness of the kind that one
might sustain in everyday life. Cf. Wilson v. Pennsylvania State Police
Department, 1999 WL 179692 (E.D.Pa) (vision-related information not as
intimate as other types of medical information, and less likely to
result in harm if disclosed to the public). However, there is a much
greater risk that social stigma, harassment and discrimination could
result from public knowledge that one has, or may have, AIDS, has been
the victim of a sexual assault, or has suffered an injury to a
reproductive organ or other intimate body part. See, e.g. Doe v. SEPTA,
712 F.2d at 1140 (AIDS); New Jersey Bell Telephone Co. v. NLRB, 720
F.2d 789, 790 (3d Cir. 1983) (reasons given by employees for absence or
tardiness included colitis, insertion of urethral tubes, vaginal
infections, scalded rectal areas, and heart problems).
OSHA has concluded that the disclosure of occupational injury and
illness records to employees and their representatives serves important
public policy interests. These interests support a requirement for
access by employees and their representatives to personally
identifiable information for all but a limited number of cases recorded
on the Log, and to all information on the right-hand side of the Form
301. However, OSHA also concludes that prior Agency access policies may
not have given
[[Page 6057]]
adequate consideration to the harm which could result from disclosure
of intimate medical information. In the absence of effective safeguards
against unwarranted use or disclosure of private information in the
injury and illness records, confidentiality must be preserved for
particularly sensitive cases. These ``privacy concern cases'' listed in
paragraph 1904.29 (b)(7) of the final rule involve diseases, such as
AIDS and hepatitis, other illnesses if the employee voluntarily
requests confidentiality, as well as certain types of injuries, the
disclosure of which could be particularly damaging or embarrassing to
the affected employee. MSDs are not included in privacy concern cases
because OSHA's ergonomics rule independently provides for access by
employees and their representatives to the names of workers who report
work-related MSDs. (See 29 CFR 1910.900(v)(1) and (2.)
The record supports this approach. For example, API recommended
that OSHA protect employee confidentiality for cases involving HIV,
fertility problems, bloodborne pathogens, seroconversions, and
impotence (Ex. 15: 375). OSHA agrees that employee confidentiality
should be protected in these and similar cases. Therefore, the final
rule requires that the employer withhold the employee's name from the
OSHA 300 Log for each ``privacy concern case,'' and maintain a separate
confidential list of employee names and case numbers. In all other
respects, the final rule ensures full access to the OSHA Log by
employees, former employees, personal representatives and authorized
employee representatives.
Protections Against Broad Public Access
In the proposal, OHSA noted that the access requirements were
intended as a tool for employees and their representatives to affect
safety and health conditions at the workplace, not as a mechanism for
broad public disclosure of injury and illness information. (61 FR
4048.) A number of commenters suggested that OSHA should include
specific language in the final rule protecting employee confidentiality
whenever injury and illness data are disclosed for other than safety or
health purposes, or to persons other than those who have a legitimate
need to know. Dow argued that:
OSHA should allow an employer to develop a system that will
protect personal identifiers and other non-safety or health related
information. Further, such information should only be available for
the specific use by an OSHA inspector who is reviewing an employer's
logs during an inspection, medical personnel, the employer's
incident investigation designated officials, and the individual's
supervisor. Outside of these individuals, access should be granted
only after written authorization from the injured or ill employee
has been obtained. This approach would allow those individuals who
have a legitimate ``need to know'' limited access to the information
(Ex.. 15: 335).
Other commenters suggested requiring that employee names be shielded if
the forms are disclosed to third parties (see, e.g., Exs. 15: 374,
375).
OSHA agrees that confidentiality of injury and illness records
should be maintained except for those persons with a legitimate need to
know the information. This is a logical extension of the agency's
position that a balancing test is appropriate in determining the scope
of access to be granted employees and their representatives. Under this
test, ``the fact that protected information must be disclosed to a
party who has need for it* * * does not strip the information of its
protection against disclosure to those who have no similar need.''
Fraternal Order of Police, 812 F2d at 118.
OSHA has determined that employees, former employees and authorized
employee representatives have a need for the information that justifies
their access to records, including employee names, for all except
privacy concern cases. While the possibility exists that employees and
their representatives with access to the records could disclose the
information to the general public, OSHA does not believe that this risk
is sufficient to justify restrictions on the use of the records by
persons granted access under sections 1904.40 and 1904.35. As discussed
in the following section, strong policy and legal considerations
militate against placing restrictions on employees' and employee
representatives' use of the injury and illness information.
There is also a concern that employers may voluntarily grant access
to OSHA records to persons outside their organization, who do not need
the information for safety and health purposes. To protect employee
confidentiality in these circumstances, paragraph 1904.29(b)(10)
requires employers generally to remove or shield employee names and
other personally identifying information when they disclose the OSHA
forms to persons other than government representatives, employees,
former employees or authorized employee representatives. Employers
remain free to disclose unredacted records for purposes of evaluating a
safety and health program or safety and health conditions at the
workplace, processing a claim for workers' compensation or insurance
benefits, or carrying out the public health or law enforcement
functions described in section 164.512 of the final rule on Standards
for Privacy of Individually Identifiable Health Information.
OSHA believes that this provision protects employee privacy to a
reasonable degree consistent with the legitimate business needs of
employers and sound public policy considerations. The record does not
demonstrate that routine access by the general public to personally
identifiable injury and illness data is necessary or useful. Indeed,
several prominent industry representatives stated that the OSHA log
should not be made available to the general public. See Ex. 335 (Dow);
Ex. 15-375 (API). Furthermore, employers are always free to seek
authorization from employees to disclose their names in particular
cases. Thus, employers retain a degree of flexibility to tailor their
voluntary disclosure policies to meet exigent circumstances.
Misuse of the Records by Employees and Their Representatives
Several commenters were concerned about inappropriate uses of the
records once they are released to employees (see, e.g., Exs. 15: 9, 39,
102, 185, 193, 201, 304, 305, 317, 321, 330, 341, 346, 359, 363, 375,
389, 397, 412, 413, 423, 424, 431). The American Petroleum Institute
stated: ``API has concerns about potentials for uncontrolled and
unscrupulous use of these data for purposes unrelated to safety and
health--uses such as for plaintiff-lawyer ``fishing expeditions'', in
union organizing attempts, to create adverse publicity as contracts
expire, or to foster other special interests'' (Ex. 15: 375). Several
commenters stated that information requests could be used as a
harassment by unions (see, e.g., Exs. 15: 9, 201, 317, 423, 424), and
the Caterpillar Corporation (Ex. 15: 201) related its labor management
difficulties during a recent strike (Ex. 15: 201). The American Crystal
Sugar Company (Ex. 15 363) expressed concern that ``there have been
instances where an employee is paid a finder's fee to identify possible
cases for personal injury lawyers.'' A few commenters suggested methods
to solve these potential misuse problems, including a requirement for
all information requests to be made in writing (see, e.g., Exs. 15:
163, 235, 281, 397). Two commenters suggested requirements for the
employee or employee representative to sign a pledge not to misuse the
information (Exs. 15: 359, 389). For example, the Waste
[[Page 6058]]
Management, Inc. Company suggested that ``OSHA should require the
individual(s) obtaining a copy of the log or record to certify that the
information will be maintained in confidence and will not be released
to a third party under any circumstances under penalty of law. OSHA
shall also promulgate severe penalties for violation'' (Ex. 15: 389).
While there may be instances where employees share the data with
third parties who normally would not be allowed to access the data
directly, the final rule contains no enforceable restrictions on use by
employees or their representatives. Employees and their representatives
might reasonably fear that they could be found personally liable for
violations of such restrictions. This would have a chilling effect on
employees' willingness to use the records for safety and health
purposes, since few employees would voluntarily risk such liability.
Moreover, despite the concerns of commenters about abuse problems, OSHA
has not noted any significant problems of this type in the past. This
suggests that, if such problems exist, they are infrequent. In
addition, as noted in the privacy discussion above, a prohibition on
the use of the data by employees or their representatives is beyond the
scope of OSHA's enforcement authority. For these reasons, the employer
may not require an employee, former employee or designated employee
representative to agree to limit the use of the records as a condition
for viewing or obtaining copies of records.
OSHA has added a statement to the Log and Incident Report forms
indicating that these records contain information related to employee
health and must be used in a manner that protects the confidentiality
of employees to the extent possible while the information is used for
occupational safety and health purposes. This statement is intended to
inform employees and their representatives of the potentially sensitive
nature of the information in the OSHA records and to encourage them to
maintain employee confidentiality if compatible with the safety and
health uses of the information. Encouraging parties with access to the
forms to keep the information confidential where possible is reasonable
and should not discourage the use of the information for safety and
health purposes. OSHA stresses, however, that the statement does not
reflect a regulatory requirement limiting the use of records by those
with access under sections 1904.35 and 1904.40.
The Records Access Requirement and the ADA
Several commenters alleged that a requirement that individually
identifiable injury and illness records be disclosed to employees and
union representatives would conflict with the confidentiality
provisions of the Americans With Disabilities Act, 42 U.S.C.
Secs. 12112 (d)(3)(B), (d)(4)(C) (1994 ed. and Supp. III) (ADA) (see,
e.g., Exs. 15: 64, 290, 304, 315, 397).
Section 12112(d)(3)(B) of the ADA permits an employer to require a
job applicant to submit to a medical examination after an offer of
employment has been made but before commencement of employment duties,
provided that medical information obtained from the examination is kept
in a confidential medical file and not disclosed except as necessary to
inform supervisors, first aid and safety personnel, and government
officials investigating compliance with the ADA. Section 12112(d)(4)(C)
requires that the same confidentiality protection be accorded health
information obtained from a voluntary medical examination that is part
of an employee health program.
By its terms, the ADA requires confidentiality for information
obtained from medical examinations given to prospective employees, and
from medical examinations given as part of a voluntary employee health
program. The OSHA injury and illness records are not derived from pre-
employment or voluntary health programs. The information in the OSHA
injury and illness records is similar to that found in workers'
compensation forms, and may be obtained by employers by the same
process used to record needed information for workers' compensation and
insurance purposes. The Equal Employment Opportunity Commission (EEOC)
recognizes a partial exception to the ADA's strict confidentiality
requirements for medical information regarding an employee's
occupational injury or workers' compensation claim. See EEOC
Enforcement Guidance: Workers' Compensation and the ADA, 5 (September
3, 1996). Therefore, it is not clear that the ADA applies to the OSHA
injury and illness records.
Even assuming that the OSHA injury and illness records fall within
the literal scope of the ADA's confidentiality provisions, it does not
follow that a conflict arises. The ADA states that ``nothing in this
Act shall be construed to invalidate or limit the remedies, rights, and
procedures of any Federal law. * * *'' 29 U.S.C. 12201(b). In enacting
the ADA, Congress was aware that other federal standards imposed
requirements for testing an employee's health, and for disseminating
information about an employee's medical condition or history,
determined to be necessary to preserve the health and safety of
employees and the public. See H.R. Rep. No. 101-485 pt. 2, 101st Cong.,
2d Sess. 74-75 (1990), reprinted in 1990 U.S.C.C.A.N. 356, 357 (noting,
e.g. medical surveillance requirements of standards promulgated under
OSH Act and Federal Mine Safety and Health Act, and stating ``[t]he
Committee does not intend for [the ADA] to override any medical
standard or requirement established by Federal * * * law * * * that is
job-related and consistent with business necessity''). See also 29 CFR
part 1630 App. p. 356. The ADA recognizes the primacy of federal safety
and health regulations; therefore such regulations, including mandatory
OSHA recordkeeping requirements, pose no conflict with the ADA. Cf.
Albertsons, Inc. v. Kirkingburg, 527 U.S. 555, (1999) (``When Congress
enacted the ADA, it recognized that federal safety and health rules
would limit application of the ADA as a matter of law.'')
The EEOC, the agency responsible for administering the ADA, has
recognized both in the implementing regulations at 29 CFR part 1630,
and in interpretive guidelines, that the ADA yields to the requirements
of other federal safety and health standards. The implementing
regulation codified at 29 CFR 1630.15(e) explicitly states that an
employer's compliance with another federal law or regulation may be a
defense to a charge of violating the the ADA:
(e) Conflict with other Federal laws. It may be a defense to a
charge of discrimination under this part that a challenged action is
required or necessitated by another Federal law or regulation, or
that another Federal law or regulation prohibits an action
(including the provision of a particular reasonable accommodation)
that would otherwise be required by this part.
Interpretive guidance provided by the EEOC further underscores this
point. The 1992 Technical Assistance Manual on Title I of the ADA
states as follows:
4.6 Health and Safety Requirements of Other Federal or State Laws
The ADA recognizes employers' obligations to comply with
requirements of other laws that establish health and safety
standards. However, the [ADA] gives greater weight to Federal than
to state or local law.
1. Federal Laws and Regulations
The ADA does not override health and safety requirements
established under other Federal laws. If a standard is required by
another Federal law, an employer must
[[Page 6059]]
comply with it and does not have to show that the standard is job
related and consistent with business necessity (emphasis added).
U.S. Equal Employment Opportunity Commission, A Technical Assistance
Manual on the Employment Provisions (Title I) of the Americans With
Disabilities Act, IV-16 (1992) (Technical Assistance Manual). The
Technical Assistance Manual also states that, while medical-related
information about employees must generally be kept confidential, an
exception applies where ``[o]ther Federal laws and regulations * * *
require disclosure of relevant medical information.'' Assistance Manual
at VI-12. See also Assistance Manual at VI-14-15 (actions taken by
employers to comply with requirements imposed under the OSH Act are job
related and consistent with business necessity). For these reasons,
OSHA does not believe that the mandatory employee access provisions of
the final recordkeeping rule conflict with the provisions of the ADA.
Times Allowed To Provide Records
In its proposal, OSHA would have required the employer to allow the
employee to view the 300 Log and the Form 301 records by the end of the
next business day and provide copies within seven calendar days. An
employer would have been required to provide access to the 301 forms
for all injuries and illnesses ``in a reasonable time'' (61 FR 4061).
Several commenters agreed with OSHA's proposed times for providing
copies of the records to employees and their representatives (see,
e.g., Exs. 15: 213, 277, 359). For example, Consolidated Edison (Ex.
15: 213) stated that ``[t]he time limits in the proposal are acceptable
but [Con Ed] recommends that a time limit of seven days be included at
[proposed] paragraph 1904.11(b)(5) [which addressed the copying of 301
forms] rather than the vague ``reasonable time'' included in the
text.''
A number of commenters disagreed with OSHA's proposed times for
providing copies of the records (see, e.g., Exs. 15: 195, 201, 213,
218, 226, 235, 326, 347, 369, 370, 389, 409, 423, 425, 440). These
commenters suggested a variety of times, including four hours (Ex. 15:
369), 24 hours (Ex. 15: 425), two workdays (Ex. 15: 226), five working
days (Ex. 15: 235), within seven calendar days or one week (Ex. 15:
195, 370), 15 days to match the requirements of the OSHA medical
records access rule (Ex. 15: 218, 347, 409, 423), and 21 days (Ex. 15:
389). The International Brotherhood of Teamsters (Ex. 15: 369)
suggested that ``[e]mployees and their designated representatives be
provided with the same access rule as proposed for governmental
officials, RE: obtain copies of logs four hours after the request.''
The Tennessee Valley Authority (TVA) argued that ``[a]ll requests
for records should be made in writing and the information provided to
the authorized requester within five working days. This provides the
documentation for who received the information and reduces the burden
on the employer'' (Ex. 15: 235). Bell Atlantic Network Services, Inc.
(Ex. 15: 218) recommended that ``OSHA should simplify the very
confusing and differing ``access'' and ``copies'' schedule to an
uniform 15 working days as is the requirement in 29 CFR 1910.20, Access
to Employee Exposure and Medical Records.''
In addition, the Caterpillar Company (Ex. 15: 201) recommended that
the final rule should not establish time frames at all, stating that
``The time limit of providing access by the close of business on the
next scheduled workday is unnecessarily restrictive. Noncompliance
situations could be generated by simple work schedule conflicts or
other minor difficulties. The access period should be stated as a
reasonable time period allowing employees and employers adequate
flexibility.''
Under the final rule, an employer must provide a copy of the 300
Log to an employee, former employee, personal representative or
authorized employee representative on the business day following the
day on which an oral or written request for records is received.
Likewise, when an employee, former employee or personal representative
asks for copies of the 301 form for an injury or illness to that
employee, the employer must provide a copy by the end of the next
business day. OSHA finds that these are appropriate time frames for
supplying a copy of the existing forms, which in the case of the Form
301 is a single page. The average 300 Log is also only one page,
although employers who have a larger number of occupational injuries
and illnesses will have more than one page.
The final rule allows the employer seven business days to provide
copies of the OSHA 301 forms for all occupational injuries and
illnesses that occur at the establishment. Several commenters stated
that there is additional burden for these large requests (see, e.g.,
Exs. 15: 172, 260, 262, 265, 294, 297, 401). For example, the Boeing
Corporation stated that ``[s]ince Boeing is a large employer with
several thousand employees at several sites, (up to 30,000 at one
site), the administrative burden could be immense, particularly, if
large numbers of records are requested by several employees. For
example, if 100 employees requested ten thousand 301 forms, one million
records would have to be available. This requirement is simply not
administratively realistic.'' OSHA agrees that, because these records
may involve more copying, the employer needs more time to produce
copies of the 301 forms. In addition, as stated in the final rule, the
employer may not provide the authorized employee representative with
the information on the left side of the 301 form, so the employer needs
additional time to redact this information. Because the final rule only
provides a right of access to an authorized employee representative
(authorized collective bargaining agent), the number of requests should
not exceed the number of unions representing employees at the
establishment. Thus, the multiple request problem envisioned by Boeing
should not surface. In addition, OSHA expects that, in large plants
such as the one described by Boeing, the authorized employee
representatives will ask for the data on a periodic basis, either
monthly or quarterly, so the data requested at one time will be
limited. In addition, the employer must provide only one free copy. If
additional copies are requested, the employer may charge for the
copies.
Charging Employees for Copies of the OSHA Records
The proposal also required the employer to provide copies without
cost, or provide access to copying facilities without charge, or allow
the employee or representative to take the records off site to make
copies (61 FR 4061). Linda Ballas (Ex. 15: 31) commented that the
copies should be provided at no cost to the employee. Several
commenters stated that employees who access the records should pay for
them (see, e.g., Exs. 15: 151, 152, 179, 180, 201, 226, 317, 397, 424).
Atlantic Marine, Inc. stated: ``Providing copies of records without
cost to individuals may produce an undue administrative and financial
burden for some employers. Although there is merit to providing
information access to employees, the charging of a fee not to exceed
the actual cost for duplicating the documents may deter unnecessary or
frivolous requests'' (Ex. 15: 151). The United Parcel Service Company
(Ex. 15: 424) stated that:
[i]f expanded access to safety and health records is afforded,
certainly such access should not be at the employer's cost. This is
an unfair burden on the employer, and will
[[Page 6060]]
encourage improper, harassing requests. These risks are not
alleviated by the alternative of permitting the employer to give its
records to the requesting party to copy, Proposed
Sec. 1904.11(b)(3)(iii), 61 Fed. Reg. at 4061, since employers often
will be reluctant to entrust their only original copies to a current
or former employee. (Ex. 15: 424)
In the final rule, OSHA has implemented the proposed provision
requiring employers to provide copies free of charge to employees who
ask for the records. The costs of providing copies is a minimal
expense, and employees are more likely to access the data if it is
without cost. In addition, allowing the employer to charge for copies
of the OSHA records would only serve to delay production of the
records. Providing free copies for employees thus helps meet one of the
major goals of this rulemaking; to improve employee involvement.
However, OSHA agrees that there are some circumstances where employers
should have the option of charging for records. After receiving an
initial, free copy of requested records, an employee, former employee,
or designated representative may be charged a reasonable search and
copying fee for duplicate copies of the records. However, no fee may be
charged for an update of a previously requested record.
Section 1904.37 State Recordkeeping Regulations
Section 1904.37 addresses the consistency of the recordkeeping and
reporting requirements between Federal OSHA and those States where
occupational safety and health enforcement is provided by an OSHA-
approved State Plan. Currently, in 21 States and 2 territories, the
State government has been granted authority to operate a State OSHA
Plan covering both the private and public (State and local government)
sectors under section 18 of the OSH Act (see the State Plan section of
this preamble for a listing of these States). Two additional States
currently operate programs limited in scope to State and local
government employees only. State Plans, once approved, operate under
authority of State law and provide programs of standards, regulations
and enforcement which must be ``at least as effective'' as the Federal
program. (State Plans must extend their coverage to State and local
government employees, workers not otherwise covered by Federal OSHA
regulations.) Section 1904.37 of the final rule describes what State
Plan recordkeeping requirements must be identical to the Federal
requirements, which State regulations may be different, and provides
cross references to the State Plan regulations codified in Section
1902.3(k), 1952.4, and 1956.10(i). The provisions of Subpart A of 29
CFR part 1952 specify the regulatory discretion of the State Plans in
general, and section 1952.4 spells out the regulatory discretion of the
State Plans specifically for the recordkeeping regulation.
In the final rule, OSHA has rewritten the text of the corresponding
proposed section and moved it into Subpart D of the final rule. Under
Section 18 of the OSH Act, a State Plan must require employers in the
State to make reports to the Secretary in the same manner and to the
same extent as if the Plan were not in effect. Final section 1904.37
makes clear that States with approved State Plans must promulgate new
regulations that are substantially identical to the final Federal rule.
State Plans must have recording and reporting regulations that impose
identical requirements for the recordability of occupational injuries
and illnesses and the manner in which they are entered. These
requirements must be the same for employers in all the States, whether
under Federal or State Plan jurisdiction, and for State and local
government employers covered only through State Plans, to ensure that
the occupational injury and illness data for the entire nation are
uniform and consistent so that statistics that allow comparisons
between the States and between employers located in different States
are created.
For all of the other requirements of the Part 1904 regulations, the
regulations adopted by the State Plans may be more stringent than or
supplemental to the Federal regulations, pursuant to paragraph
1952.4(b). This means that the States' recording and reporting
regulations could differ in several ways from their Federal Part 1904
counterparts. For example, a State Plan could require employers to keep
records for the State, even though those employers are within an
industry exempted by the Federal rule. A State Plan could also require
employers to keep additional supplementary injury and illness
information, require employers to report fatality and multiple
hospitalization incidents within a shorter timeframe than Federal OSHA
does, require other types of incidents to be reported as they occur, or
impose other requirements. While a State Plan must assure that all
employee participation and access rights are assured, the State may
provide broader access to records by employees and their
representatives. However, because of the unique nature of the national
recordkeeping program, States must secure Federal OSHA approval for
these enhancements.
The final rule eliminates paragraph (b) of section 1904.14 of the
proposed rule. Proposed paragraph (b) stated that records maintained
under State Plan rules would be considered to be in compliance with the
Federal rule. OSHA has eliminated paragraph (b) as unnecessary because
it is redundant to state that the records kept under State law will be
acceptable; since State regulations must be identical to, or more
stringent than the Federal regulations, compliance by private sector
employers with approved State laws would by definition constitute
compliance with the Federal regulations. Paragraph (c), which deals
with public sector recording and reporting requirements in both
comprehensive State Plans (those covering both the private and public
sector employees) and those which are limited to the public sector
(State and local government), has been reworded and moved to
1904.37(b)(3).
Because Federal OSHA does not provide coverage to State and local
government employees, the State-Plan States may grant State
recordkeeping variances to the State and local governments under their
jurisdiction. However, the State must obtain concurrence from Federal
OSHA prior to issuing any such variances. In addition, the State-Plan
States may not grant variances to any other employers and must
recognize all 1904 variances granted by Federal OSHA. These steps are
necessary to ensure that the injury and illness data requirements are
consistent from State to State.
Rulemaking comments on this issue were unanimous in supporting
identical State and Federal regulations for recordkeeping. Multi-State
employers and their representatives, such as US West, Lucent
Technologies, AT&T, and the National Association of Manufacturers,
thought that identical State regulations would simplify and reduce
their recordkeeping burdens (see, e.g., Exs. 15: 194, 272, 303, 305,
346, 348, 358, 375).
OSHA understands the advantages to multi-State businesses of
following identical OSHA rules in both Federal and State Plan
jurisdictions, but also recognizes the value of allowing the States to
have different rules to meet the needs of each State, as well as the
States' right to impose different rules as long as the State rule is at
least as effective as the Federal rule. Accordingly, the Part 1904
rules impose identical requirements where they are needed to create
consistent injury and illness statistics for the nation and allows the
States to impose
[[Page 6061]]
supplemental or more stringent requirements where doing so will not
interfere with the maintenance of comprehensive and uniform national
statistics on workplace fatalities, injuries and illnesses.
Section 1904.38 Variances From the Recordkeeping Rule
Section 1904.38 of the final rule explains the procedures employers
must follow in those rare instances where they request that OSHA grant
them a variance or exception to the recordkeeping rules in Part 1904.
The rule contains these procedures to allow an employer who wishes to
maintain records in a manner that is different from the approach
required by the rules in Part 1904 to petition the Assistant Secretary.
Section 1904.8 allows the employer to apply to the Assistant Secretary
for OSHA and request a Part 1904 variance if he or she can show that
the alternative recordkeeping system: (1) Collects the same information
as this Part requires; (2) Meets the purposes of the Act; and (3) Does
not interfere with the administration of the Act.
The variance petition must include several items, namely the
employer's name and address; a list of the State(s) where the variance
would be used; the addresses of the business establishments involved; a
description of why the employer is seeking a variance; a description of
the different recordkeeping procedures the employer is proposing to
use; a description of how the employer's proposed procedures will
collect the same information as would be collected by the Part 1904
requirements and achieve the purpose of the Act; and a statement that
the employer has informed its employees of the petition by giving them
or their authorized representative a copy of the petition and by
posting a statement summarizing the petition in the same way notices
are posted under paragraph 1903.2(a).
The final rule the describes how the Assistant Secretary will
handle the variance petition by taking the following steps:
--The Assistant Secretary will offer employees and their authorized
representatives an opportunity to comment on the variance petition. The
employees and their authorized representatives will be allowed to
submit written data, views, and arguments about the petition.
--The Assistant Secretary may allow the public to comment on the
variance petition by publishing the petition in the Federal Register.
If the petition is published, the notice will establish a public
comment period and may include a schedule for a public meeting on the
petition.
--After reviewing the variance petition and any comments from employees
and the public, the Assistant Secretary will decide whether or not the
proposed recordkeeping procedures will meet the purposes of the Act,
will not otherwise interfere with the Act, and will provide the same
information as the Part 1904 regulations provide. If the procedures
meet these criteria, the Assistant Secretary may grant the variance
subject to such conditions as he or she finds appropriate.
--If the Assistant Secretary grants the variance petition, OSHA will
publish a notice in the Federal Register to announce the variance. The
notice will include the practices the variance allows, any conditions
that apply, and the reasons for allowing the variance.
The final rule makes clear that the employer may not use the
proposed recordkeeping procedures while the Assistant Secretary is
processing the variance petition and must wait until the variance is
approved. The rule also provides that, if the Assistant Secretary
denies the petition, the employer will receive notice of the denial
within a reasonable time and establishes that a variance petition has
no effect on the citation and penalty for a citation that has been
previously issued by OSHA and that the Assistant Secretary may elect
not to review a variance petition if it includes an element which has
been cited and the citation is still under review by a court, an
Administrative Law Judge (ALJ), or the OSH Review Commission.
The final rule also states that the Assistant Secretary may revoke
a variance at a later date if the Assistant Secretary has good cause to
do so, and that the procedures for revoking a variance will follow the
same process as OSHA uses for reviewing variance petitions. Except in
cases of willfulness or where necessary for public safety, the
Assistant Secretary will: Notify the employer in writing of the facts
or conduct that may warrant revocation of a variance and provide the
employer, employees, and authorized employee representatives with an
opportunity to participate in the revocation procedures.
The final rule differs somewhat from the variance section of the
former rule. The text of the previous rule gave the Bureau of Labor
Statistics authority to grant, deny, and revoke recordkeeping variances
and exceptions. Under the former rule, applicants were required to
petition the Regional Commissioner of the Department of Labor's Bureau
of Labor Statistics (BLS) for the region where the establishment was
located. Petitions that stretched beyond the regional boundary were
referred to the BLS Assistant Commissioner. These responsibilities were
transferred to OSHA in 1990 (Memorandum of Understanding between OSHA
and BLS, 7/11/90) (Ex. 6), but the variance section of the rule itself
was not amended at that time. This section of the final rule codifies
the shift in responsibilities from the BLS to OSHA with regard to
variances.
Like the former variance section of the rule, the final rule does
not specifically note that the states operating OSHA-approved state
plans are not permitted to grant recordkeeping variances. Paragraph (b)
of former section 1952.4, OSHA's rule governing the operation of the
State plans, prohibited the states from granting variances, and
paragraph (c) of that rule required the State plans to recognize any
Federal recordkeeping variances. The same procedures continue to apply
to variances under section 1904.37 and section 1952.4 of this final
rule. OSHA has not included the provisions from these two sections in
the variance sections of this recordkeeping rule, because doing so
would be repetitive.
The final rule adds several provisions to those of the former rule.
They include (1) the identification of petitioning employers' pending
citations in State plan states, (2) the discretion given to OSHA not to
consider a petition if a citation on the same subject matter is
pending, (3) the clarification that OSHA may provide additional notice
via the Federal Register and opportunity for comment, (4) the
clarification that variances have only prospective effect, (5) the
opportunity of employees and their representatives to participate in
revocation procedures, and (6) the voiding of all previous variances
and exceptions.
Variance procedures were not discussed in the Recordkeeping
Guidelines (Ex. 2), nor have there been any letters of interpretations
or OSHRC or court decisions on recordkeeping variances. As noted in the
proposal, at 61 FR 4039, only one recordkeeping variance has ever been
granted by OSHA. This variance was granted to AT&T and subsequently
expanded to its Bell subsidiaries to enable them to centralize records
maintenance for workers in the field.
The final rule does not adopt the approach to variances proposed by
OSHA in 1996 (see section 1904.15 of the proposal). OSHA proposed to
eliminate the variance and exception procedure from the recordkeeping
rules
[[Page 6062]]
altogether and instead to require all variances and exceptions to the
recordkeeping rule to be processed under OSHA's general variance
regulations, which are codified at 29 CFR Part 1905. As stated in the
proposal, OSHA believed that this change would streamline the final
recordkeeping rule and eliminate duplicate procedures for obtaining
variances. OSHA also proposed to amend paragraph 1952.4(c) to make
clear that employers were required to obtain all recordkeeping
variances or exceptions from OSHA instead of from the BLS.
OSHA received very few comments on the proposed changes to the
variance procedures. Some commenters approved the proposed approach but
did not comment on its merits (see, e.g., Exs. 15: 133, 136, 137, 141,
224, 266, 278). The International Dairy Foods Association (IDFA)
supported the change if ``it is indeed * * * a duplicative section''
and ``no significant change will occur by deleting the provision'' (Ex.
15: 203). Another commenter stated that ``no employer should be exempt
from record keeping and I cannot imagine what kind of variance for
record keeping exceptions could exist. I am requesting that this
proposal be removed from the standard'' (Ex. 15: 62). The Air Transport
Association urged ``OSHA * * * [to] permit [airline] companies to keep
records according to location or division * * * and without the need to
seek and acquire variances, so long as records can be retrieved in a
reasonable time for OSHA oversight purposes'' (Ex. 15: 378).
OSHA has decided, after further consideration, to continue to
include a specific recordkeeping variance section in the final rule,
and not to require employers who wish a recordkeeping variance or
exception to follow the more rigorous procedures in 29 CFR part 1905.
The procedures in Part 1905, which were developed for rules issued
under sections 6 and 16 of the OSH Act, may not be appropriate for
rules issued under section 8 of the Act, such as this recordkeeping
rule.
The final rule thus retains a section on variance procedures for
the recordkeeping rule. OSHA believes that few variances or exceptions
will be granted under the variance procedures of the final rule because
other provisions of the final rule already reflect many of the
alternative recordkeeping procedures that employers have asked to use
over the years, such as electronic storage and transmission of data,
centralized record maintenance, and the use of alternative
recordkeeping forms. Because these changes have been made to other
sections of the final rule, there should be little demand for variances
or exceptions. As OSHA noted in the proposal (61 FR 4039) in relation
to the AT&T variance, ``[t]he centralization of records provision
contained in this proposal [and subsequently adopted in the final rule]
will eliminate the continued need for this variance.'' Similarly, the
changes in paragraphs 1904.3(e) and (f) of the final rule that permit
substitute forms and computerization of recordkeeping by employers,
combined with the changes in paragraph 1904.30(c) that allow for
recordkeeping at a central location will accommodate the Air Transport
Association's request that OSHA ``permit airline companies to keep
records according to location or division * * * without the need to
seek and acquire variances'' (Ex. 15: 378). Under the final rule,
companies are still required to summarize their injury and illness
records for individual establishments, but may also produce records for
separate administrative units if they wish to do so. Centralized and
computerized recordkeeping systems make this a relatively simple task
when compared to paper-driven and decentralized systems.
The final changes to the variance section of the former rule are
minor. The primary change is to make clear that OSHA, rather than the
BLS, has the responsibility for granting recordkeeping variances or
exceptions. The other changes reflected in the final rule follow from
the proposed rule and are intended to add several provisions from
OSHA's general variance procedures in Part 1905. For example, paragraph
(e) of section 1904.38 of the final rule is a modification of
Sec. 1905.11(b)(8), and paragraph (i) of this section of the final rule
derives from section 1905.5. The objective of this paragraph is to give
OSHA discretionary authority to decline to act on a petition where the
petitioner has a pending citation. OSHA concludes that it would not be
appropriate to consider granting a recordkeeping variance to an
employer who has a pending recordkeeping violation before OSHRC or a
State agency.
Paragraph (i) of the final rule supports paragraph (c)(7) from this
same section because it provides a mechanism for giving OSHA notice of
a citation pending before a state agency. Paragraph (i) also clarifies
that variances only apply to future events, not to past practices.
Paragraph (j) of section 1904.38 of the final rule nullifies all prior
variances and exceptions. OSHA believes that it is important to begin
with a ``clean slate'' when the final recordkeeping rule goes into
effect. Employers with existing variances can re-petition the agency if
the final rule does not address their needs. Another addition to the
final rule makes explicit that OSHA can provide additional public
notice via the Federal Register and may offer additional opportunity
for public comment. A final addition recognizes and makes clear that
employees can participate in variance revocation proceedings.
Subpart E. Reporting Fatality, Injury and Illness Information to
the Government
Subpart E of this final rule consolidates those sections of the
rule that require employers to give recordkeeping information to the
government. In the proposed rule, these sections were not grouped
together. OSHA believes that grouping these sections into one Subpart
improves the overall organization of the rule and will make it easier
for employers to find the information when needed. The four sections of
this subpart of the final rule are:
(a) Section 1904.39, which requires employers to report fatality
and multiple hospitalization incidents to OSHA.
(b) Section 1904.40, which requires an employer to provide his or
her occupational illness and injury records to a government inspector
during the course of a safety and health inspection.
(c) Section 1904.41, which requires employers to send their
occupational illness and injury records to OSHA when the Agency sends a
written request asking for specific types of information.
(d) Section 1904.42, which requires employers to send their
occupational illness and injury records to the Bureau of Labor
Statistics (BLS) when the BLS sends a survey form asking for
information from these records.
Each of these sections, and the record evidence pertaining to them,
is discussed below.
Section 1904.39 Reporting Fatality or Multiple Hospitalization
Incidents to OSHA
Paragraph (a) of section 1904.39 of the final rule requires an
employer to report work-related events or exposures involving
fatalities or the in-patient hospitalization of three or more employees
to OSHA. The final rule requires the employer, within 8 hours after the
death of any employee from a work-related incident or the in-patient
hospitalization of three or more
[[Page 6063]]
employees as a result of a work-related incident, to orally report the
fatality/multiple hospitalization by telephone or in person to the Area
Office of the Occupational Safety and Health Administration (OSHA), or
to OSHA via the OSHA toll-free central telephone number, 1-800-321-
6742.
The final rule makes clear in paragraph 1904.39(b)(1) that an
employer may not report the incident by leaving a message on OSHA's
answering machine, faxing the Area Office, or sending an e-mail, but
may report the fatality or multiple hospitalization incident using the
OSHA 800 number. The employer is required by paragraph 1904.39(b)(2) to
report several items of information for each fatality or multiple
hospitalization incident: the establishment name, the location of the
incident, the time of the incident, the number of fatalities or
hospitalized employees, the names of any injured employees, the
employer's contact person and his or her phone number, and a brief
description of the incident.
As stipulated in paragraph 1904.39(b)(3), the final rule does not
require an employer to call OSHA to report a fatality or multiple
hospitalization incident if it involves a motor vehicle accident that
occurs on a public street or highway and does not occur in a
construction work zone. Employers are also not required to report a
commercial airplane, train, subway or bus accident (paragraph
1904.39(b)(4)). However, these injuries must still be recorded on the
employer's OSHA 300 and 301 forms, if the employer is required to keep
such forms. Because employers are often unsure about whether they must
report a fatality caused by a heart attack at work, the final rule
stipulates, at paragraph 1904.39(b)(5), that such heart attacks must be
reported, and states that the local OSHA Area Office director will
decide whether to investigate the incident, depending on the
circumstances of the heart attack.
Paragraph 1904.39(b)(6) of the final rule clarifies that the
employer is not required to report a fatality or hospitalization that
occurs more than thirty (30) days after an incident, and paragraph
1904.39(b)(7) states that, if the employer does not learn about a
reportable incident when it occurs, the employer must make the report
within 8 hours of the time the incident is reported to the employer or
to any of the employer's agents or employees.
Section 1904.39 of the final rule includes several changes from the
proposed rule and section 1904.17 of the former rule. First, OSHA has
rewritten the requirements of the former rule using the same plain-
language question-and-answer format that is used throughout the rest of
the rule. Second, this section clarifies that the report an employer
makes to OSHA on a workplace fatality or multiple hospitalization
incident must be an oral report. As the regulatory text makes clear,
the employer must make such reports to OSHA by telephone (either to the
nearest Area Office or to the toll-free 800 number) or in person.
Third, the employer may not merely leave a message at the OSHA Area
Office; instead, the employer must actually speak to an OSHA
representative. Fourth, this section of the rule lists OSHA's 800
number for the convenience of employers and to allow flexibility in the
event that the employer has difficulty reaching the OSHA Area Office.
Fifth, this section eliminates the former requirement that employers
report fatalities or multiple hospitalizations that result from an
accident on a commercial or public transportation system, such as an
airplane accident or one that occurs in a motor vehicle accident on a
public highway or street (except for those occurring in a construction
work zone, which must still be reported).
OSHA's proposal would have made three changes to the former rule:
(1) it would have clarified the need for employers to make oral
reports, (2) it would have included OSHA's 800 number in the text of
the regulation, and (3) it would have required a site-controlling
employer at a major construction site to report a multiple
hospitalization incident if the injured workers were working at that
site under the control of that employer.
A number of commenters supported all three of these proposed
changes (see, e.g., Exs. 15: 133, 136, 137, 141, 204, 224, 266, 278,
369, 378, 429). However, many commenters discussed the changes OSHA
proposed, raised additional issues not raised in the proposal, and made
various suggestions for the final rule. Comments are discussed below
for each of the proposed changes.
Making oral reports of fatalities or multiple hospitalization
incidents and the OSHA 800 number. The former rule required an employer
to ``orally report'' fatality or multiple hospitalization incidents to
OSHA by telephone or in person, although the rule did not specify that
messages left on the Area Office answering machine or sent by e-mail
would not suffice. Since the purpose of this notification is to alert
OSHA to the occurrence of an accident that may warrant immediate
investigation, such notification must be made orally to a ``live''
person. The changes made to the final rule are consistent with those
proposed, except that the proposal would have required employers to
report to the Area Office either by telephone or in person during
normal business hours and to limit use of the toll-free 800 number to
non-business hours.
A few commenters suggested ways for OSHA to make the 800 number
more available to employers and to ensure that reports are made orally
(see, e.g., Exs. 15: 9, 154, 203, 229, 238, 239, 389). For example, the
National Pest Control Association suggested that:
[t]he agency print OSHA's emergency toll free number on the OSHA
300 and 301 forms and explain that employers are to call the number
in the case of a fatality or multiple hospitalization during non-
business hours. We would also urge OSHA to define ``non-business''
hours both in the regulatory text and on the forms (Ex. 15: 229).
Waste Management, Inc. (WMI) (Ex. 15: 389) recommended full
reliance on the 800 number, proposing that:
[t]he 800 number be used at all times. A recent event entailing
an attempt to report to the local area office illustrates the
difficulty in complying with this proposal. The caller was away from
the office out-of-town and attempted to rely on information obtained
from the local telephone information service. No local OSHA
telephone number was identified as the local emergency number. The
city had multiple area offices and telephone numbers without
adequate identification at the telephone company information desk.
The local number which was finally identified as the local OSHA
emergency number could not be accessed from outside the calling area
even if the caller was willing to pay the charges. After numerous
calls and involvement of several levels of telephone management, the
normal business day was completed and so the 800 number in
Washington was called. The use of a single, nationwide 800 number
has worked for EPA and other agencies. WMI believes it would
simplify reporting requirements and ensure more timely reporting.
Houston Lighting and Power (Ex. 15: 239) suggested that OSHA allow
employers to report either to the local OSHA Office or to the 800
number:
[r]eporting of an incident either to the nearest Area Office or
through the use of the 1-800 number should be available alternatives
to the reporting requirement. The proposal limits when the 1-800
number may be used. In many cases the person reporting the incident
may not be at the incident site. It is much more efficient to use a
number that does not change from location to location than to
attempt to identify each area office.
Tri/Mark Corporation (Ex. 15: 238) asked about reporting using fax
or e-mail: ``If a live person is available to answer the 800 number,
there is no
[[Page 6064]]
problem with this item. Could a fax or e-mail message be an appropriate
notification tool?''
It is essential for OSHA to speak promptly to any employer whose
employee(s) have experienced a fatality or multiple hospitalization
incident to determine whether the Agency needs to begin an
investigation. Therefore, the final rule does not permit employers
merely to leave a message on an answering machine, send a fax, or
transmit an e-mail message. None of these options allows an Agency
representative to interact with the employer to clarify the particulars
of the catastrophic incident. Additionally, if the Area Office were
closed for the weekend, a holiday, or for some other reason, OSHA might
not learn of the incident for several days if electronic or facsimile
transmission were permitted. Paragraph 1904.39(b)(1) of the final rule
makes this clear.
As noted, OSHA allows the employer to report a fatality or multiple
hospitalization incident by speaking to an OSHA representative at the
local Area Office either on the phone or in person, or by using the 800
number. This policy gives the employer flexibility to report using
whatever mechanism is most convenient. The employer may use whatever
method he or she chooses, at any time, as long as he or she is able to
speak in person to an OSHA representative or the 800 number operator.
Therefore, there is no need to define business hours or otherwise add
additional information about when to use the 800 number; it is always
an acceptable option for complying with this reporting requirement.
This final rule also includes the 800 number in the text of the
regulation. OSHA has decided to include the number in the regulatory
text at this time to provide an easy reference for employers. OSHA will
also continue to include the 800 number in any interpretive materials,
guidelines or outreach materials that it publishes to help employers
comply with the reporting requirement.
Reporting by a site-controlling employer at a major construction
site. The proposed rule would have required a ``site controlling
employer or designee'' to report a case to OSHA ``if no more than two
employees of a single employer were hospitalized but, collectively,
three or more workers were hospitalized as in-patients.'' This
provision was designed to capture those cases where three or more
employees of different employers were injured and hospitalized in a
single incident. Because a site-controlling employer was defined in the
proposed rule as a construction firm with control of a project valued
at $1,000,000 or more, the proposed rule would have applied only to
those employers. Under the former rule, employers only needed to report
if three of their own employees were hospitalized.
A number of commenters opposed the proposed change (see, e.g., Exs.
25, 15: 9, 126, 199, 289, 305, 312, 335, 346, 356, 389, 406, 420).
Several commenters argued that the provision would be unworkable
because individual employers often do not know about the post-accident
condition of the injured employees of other employers (see, e.g., Exs.
15: 126, 346). Other commenters objected to placing the burden of such
reporting on the general contractor on a construction site rather than
on the individual employers of the affected employees (see, e.g., Exs.
15: 312, 356). Still other commenters noted that, since the term
``site-controlling employer'' is defined by OSHA as an employer in the
construction industry, this provision would have no apparent
application in multi-employer settings outside the construction
industry (see, e.g., Exs. 15: 199, 335, 346).
After considering the issue further, OSHA agrees that it would be
impractical to impose on one employer a duty to report cases of
multiple hospitalizations of employees who work for other employers.
Although such a reporting requirement would provide OSHA with
information that the Agency could use to inspect some incidents that it
might otherwise not know about, OSHA believes that the fatality and
catastrophe provisions of the final rule will capture most such
incidents. Accordingly, OSHA has not included this proposed provision
in the final rule.
Eight hours to report. A number of commenters asked OSHA to extend
the 8-hour period allowed for employers to report a fatality or a
multiple hospitalization incident to OSHA. Most of the commenters who
believe that this interval is too short recommended a 24-or 48-hour
reporting time (see, e.g., Exs. 33, 15: 35, 37, 176, 203, 218, 229,
231, 273, 301, 335, 341, 423, 425). For example, the International
Dairy Foods Association (IDFA) (Ex. 15: 203) recommended that ``the
reporting period be extended from 8 hours to 24 hours after the event.
We feel this is appropriate because the resultant devastation in this
type of situation would clearly overshadow the need to inform OSHA of
an event that, with all due respect, could not be remedied by reporting
it within 8 hours or less.'' The American Health Care Association
(AHCA) (Ex. 15: 341) stated:
[r]eporting workplace fatalities or multiple employee
hospitalization within 8 hours is unrealistic and unreasonable
because the employer's first concern should be to the employee(s)
injured or killed, his/her family or damage to the building when
others may be in imminent danger (e.g., a fire in a health care
facility may require evacuating and finding alternative placement
for frail, elderly residents). AHCA recommends that OSHA revise the
regulation by extending the time period for reporting fatalities or
hospitalization of 3 or more employees to ``within 48 hours.''
After considering these comments, and reviewing the comments
received during the comment period for the April 1, 1994 rulemaking on
this issue (59 FR 15594-15600), OSHA has decided to continue the 8-hour
requirement. The 1994 rulemaking noted the support of many commenters
for the 8-hour rule, as well as support for 4-hours, 24 hours, and 48
hours. As OSHA discussed in the April 1, 1994 rulemaking, prompt
reporting enables OSHA to inspect the site of the incident and
interview personnel while their recollections are immediate, fresh and
untainted by other events, thus providing more timely and accurate
information about the possible causes of the incident. The 8-hour
reporting time also makes it more likely that the incident site will be
undisturbed, affording the investigating compliance officer a better
view of the worksite as it appeared at the time of the incident.
Further, from its enforcement experience, OSHA is not aware that
employers have had difficulty complying with the 8-hour reporting
requirement.
Motor vehicle and public transportation accidents. Several
commenters recommended that OSHA not require employers to report to
OSHA fatalities and multiple hospitalization catastrophes caused by
public transportation accidents and motor vehicle accidents (see, e.g.,
Exs. 33, 15: 176, 199, 231, 272, 273, 301, 303, 375). The comments of
NYNEX (Ex. 15: 199) are typical:
[t]he primary purpose of this section is to provide OSHA with
timely information necessary to make a determination whether or not
to investigate the scene of an incident. To NYNEX's knowledge, OSHA
has not investigated public transportation accidents or motor
vehicle accidents occurring on public streets or highways. In order
to reduce unnecessary costs for both employers and OSHA, NYNEX
recommends that fatalities and multiple hospitalizations resulting
from these types of accidents be exempt from the reporting
requirement.
OSHA agrees with these commenters that there is no need for an
employer to report a fatality or multiple hospitalization incident when
OSHA is
[[Continued on page 6065]]