[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 th