[Federal Register: January 19, 2001 (Volume 66, Number 13)]
[Rules and Regulations]
[Page 6065-6114]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19ja01-24]
[[pp. 6065-6114]] Occupational Injury and Illness Recording and Reporting
Requirements
[[Continued from page 6064]]
[[Page 6065]]
clearly not going to make an investigation. When a worker is killed or
injured in a motor vehicle accident on a public highway or street, OSHA
is only likely to investigate the incident if it occurred in a highway
construction zone. Likewise, when a worker is killed or injured in an
airplane crash, a train wreck, or a subway accident, OSHA does not
investigate, and there is thus no need for the employer to report the
incident to OSHA. The text of paragraphs 1904.39(b)(3) and (4) of the
final rule clarifies that an employer is not required to report these
incidents to OSHA. These incidents are normally investigated by other
agencies, including local transit authorities, local or State police,
State transportation officials, and the U.S. Department of
Transportation.
However, although there is no need to report these incidents to
OSHA under the 8-hour reporting requirement, any fatalities and
hospitalizations caused by motor vehicle accidents, as well as
commercial or public transportation accidents, are recordable if they
meet OSHA's recordability criteria. These cases should be captured by
the Nation's occupational fatality and injury statistics and be
included on the employer's injury and illness forms. The statistics
need to be complete, so that OSHA, BLS, and the public can see where
and how employees are being made ill, injured and killed. Accordingly,
the final rule includes a sentence clarifying that employers are still
required to record work-related fatalities and injuries that occur as a
result of public transportation accidents and injuries.
Although commenters are correct that OSHA only rarely investigates
motor vehicle accidents, the Agency does investigate motor vehicle
accidents that occur at street or highway construction sites. Such
accidents are of concern to the Agency, and OSHA seeks to learn new
ways to prevent these accidents and protect employees who are exposed
to them. For example, OSHA is currently participating in a Local
Emphasis Program in the State of New Jersey that is designed to protect
highway construction workers who are exposed to traffic hazards while
performing construction work. Therefore, the final rule provides
provisions that require an employer to report a fatality or multiple
hospitalization incident that occurs in a construction zone on a public
highway or street.
Other issues related to the reporting of fatalities and multiple
hospitalization incidents. Commenters also raised several issues not
addressed in the proposed rule. The National Pest Control Association
(NPCA) (Ex. 15: 229) asked OSHA to allow for a longer reporting time in
those rare cases where the owner of a small business was himself or
herself incapacitated in the accident, suggesting that:
[l]anguage be included in the rule revisions to provide for
additional time to report fatalities and multiple hospitalizations
if the employer is hospitalized or otherwise incapacitated. * * *
Typically, pest control companies are very small operations. Many
employ five or less employees. Often times the business owner is out
in the field as much as the employees. So, let's say an employer is
hospitalized during a work-related incident that also claimed the
life of an employee, who happened to be the lone employee. Can the
employer really be expected to report the fatality within eight
hours? In most instances the eight hour requirement is rather
reasonable, however, in this circumstance it is not. NPCA asks that
the agency consider adding language allowing small employers who are
hospitalized additional time to report a multiple hospitalization or
fatality.
OSHA has decided that there is no need to include language to
address this very rare occurrence. If such an unfortunate event were to
occur, OSHA would certainly allow a certain amount of leeway for the
employer or a representative to report the case. The OSHA inspector
can, for good cause, provide the employer with reasonable relief from
citation and penalty for failing to report the incident within 8 hours,
especially if the employer reports it as soon as possible.
Bell Atlantic (Ex. 15: 218) and the Dow Chemical Company (Ex. 15:
335) recommended that OSHA include additional provisions for employees
who are admitted to the hospital for observation only. Bell Atlantic's
comments were: ``Bell Atlantic also recommends that the hospitalization
requirement [for reporting multiple hospitalizations] be limited to
those workers that are hospitalized overnight for treatment. The
current proposal does not address hospitalization for observation, only
that they are non-recordable.''
OSHA disagrees with these comments, as it did when similar comments
were submitted to the record in the 1994 rulemaking on this provision
[59 FR 15596-15597]. If three or more workers are hospitalized
overnight, whether for treatment or observation, the accident is
clearly of a catastrophic nature, and OSHA needs to learn about it
promptly. Additionally, the inpatient distinction provides an easy-to-
understand trigger for reporting. In many instances, a patient who is
admitted for observation as an inpatient later receives treatment after
the true nature and extent of the injury becomes known. At the time of
the incident, when reporting is most useful, the employer is unlikely
to know the details about the treatment that the worker is receiving
(e.g., observation only or medical treatment). However, the employer
will probably know that the employee has been admitted to the hospital
as an inpatient.
The United Parcel Service (UPS) (Ex. 15: 424) suggested that the 8-
hour time period for reporting apply only when a higher ranking
official of the company learns of the fatality or catastrophe, stating:
[U]PS supports this proposal, with one modification: the
provision that the eight-hour limit begins to run on notice to an
employee or agent is over broad. It may happen that workers who
learn of the death or hospitalization of a co-worker do not notify
the employer in sufficient time to enable the manager in charge of
contacting OSHA to meet the deadline. The better rule, therefore, is
to require OSHA modification within eight hours of the incident's
being reported to a supervisor, manager, or company official. This
allowance is particularly necessary for incidents occurring away
from the work site.
The issue of who within the company must learn of the incident
before the reporting deadline was also discussed in the 1994 rulemaking
[59 FR 15597]. As in the former rule, the final rule requires reporting
within 8 hours of the time any agent or employee of the employer
becomes aware of the incident. It is the employer's responsibility to
ensure that appropriate instructions and procedures are in place so
that corporate officers, managers, supervisors, medical/health
personnel, safety officers, receptionists, switchboard personnel, and
other employees or agents of the company who learn of employee deaths
or multiple hospitalizations know that the company must make a timely
report to OSHA.
Section 1904.40 Providing Records to Government Representatives
Under the final rule, employers must provide a complete copy of any
records required by Part 1904 to an authorized government
representative, including the Form 300 (Log), the Form 300A(Summary),
the confidential listing of privacy concern cases along with the names
of the injured or ill privacy case workers, and the Form 301 (Incident
Report), when the representative asks for the records during a
workplace safety and health inspection. This requirement is unchanged
from the corresponding requirement in OSHA's former recordkeeping rule.
However, the
[[Page 6066]]
former rule combined the requirements governing both government
inspectors' and employers' rights of access to the records into a
single section, section 1904.7 ``Access to Records.'' The final rule
separates the two. It places the requirements governing access to the
records by government inspectors in Subpart E, along with other
provisions requiring employers to submit their occupational injury and
illness records to the government or to provide government personnel
access to them. Provisions for employee access to records are now in
section 1904.35, Employee Involvement, in Subpart D of this final rule.
The final regulatory text of paragraph (a) of section 1904.40
requires an employer to provide an authorized government representative
with records kept under Part 1904 within four business hours. As stated
in paragraph 1904.40(b)(1), the authorized government representatives
who have a right to obtain the Part 1904 records are a representative
of the Secretary of Labor conducting an inspection or investigation
under the Act, a representative of the Secretary of Health and Human
Services (including the National Institute for Occupational Safety and
Health (NIOSH) conducting an investigation under Section 20(b) of the
Act, or a representative of a State agency responsible for
administering a State plan approved under section 18 of the Act. The
government's right to ask for such records is limited by the
jurisdiction of that Agency. For example, a representative of an OSHA
approved State plan could only ask for the records when visiting an
establishment within that state.
The final rule allows the employer to take into account
difficulties that may be encountered if the records are kept at a
location in a different time zone from the establishment where the
government representative has asked for the records. If the employer
maintains the records at a location in a different time zone, OSHA will
use the business hours of the establishment at which the records are
located when calculating the deadline, as permitted by paragraph
1904.40(b)(2).
The former rule. Paragraph 1904.7(a) of the former OSHA
recordkeeping rule required employers to provide authorized government
representatives with access to the complete Form 200, without the
removal of any information (unredacted). That paragraph read as
follows:
Each employer shall provide, upon request, records provided for
in Secs. 1904.2, 1904.4, and 1904.5, for inspection and copying by
any representative of the Secretary of Labor for the purpose of
carrying out the provisions of the Act, and by representatives of
the Secretary of Health, Education, and Welfare during any
investigation under section 20(b) of the Act, or by any
representative of a State accorded jurisdiction for occupational
safety and health inspections or for statistical compilation under
sections 18 and 24 of the Act.
The proposal. The proposed regulation was consistent with OSHA's
former recordkeeping regulation in that it continued to require
employers to provide government representatives with access to the
entire OSHA injury and illness Log and Summary (Forms 300 and 300A) and
OSHA Incident Record (Form 301). Proposed paragraph 1904.11(a),
``Access to Records,'' read as follows:
Government Representatives. Each employer shall provide, upon a
request made in person or in writing, copies of the OSHA Forms 300
and 301 or equivalents, and year-end summaries for their own
employees, and injury and illness records for ``subcontractor
employees'' as required under this Part to any authorized
representative of the Secretary of Labor or Secretary of Health and
Human Services or to any authorized representative of a State
accorded jurisdiction for occupational safety and health for the
purposes of carrying out the Act.
(1) When the request is made in person, the information must be
provided in hard copy (paper printout) within 4 hours. If the
information is being transmitted to the establishment from some
other location, using telefax or other electronic transmission, the
employer may provide a copy to the government representative present
at the establishment or to the government representative's office.
(2) When the request is made in writing, the information must be
provided within 21 days of receipt of the written request, unless
the Secretary requests otherwise.
The proposal thus would have continued to combine the records
access provisions for government personnel with the access provisions
for employees, former employees and employee representatives. The
proposed rule would have modified the former rule in several ways,
however (61 FR 4038). First, it would have required the employer to
provide copies of the forms, while the former rule simply required the
employer to provide records for inspection and copying. Second, the
proposal would have required the employer to produce the records within
4 hours, while the former rule did not specify any time period. Third,
the proposed rule would have allowed an employer either to provide the
records at the inspection location, or to fax the records to the
government inspector's home office. This would allow employers to keep
their records at a centralized location as long as the government
inspector could obtain the information promptly. Fourth, the proposed
rule would have required the employer to send Part 1904 information to
OSHA within 21 days of the date on which a written request was received
from the Agency. This time limit for mailed survey forms was
established in section 1904.17 of the former rule and is carried
forward in this final rule at section 1904.40.
The proposal also requested comment on situations where the 4-hour
requirement might be infeasible and posed several questions for the
public to consider:
OSHA solicits input on these time limitations. Are they
reasonable? Should they be shortened or extended? Should the
requirement be restricted to business hours, and if so, to the
business hours of the establishment to which the records pertain or
the establishment where the records are maintained?
Many commenters agreed with OSHA that government representatives
should have access to the records themselves (see, e.g., Exs. 15: 78,
163, 218, 359, 369, 405). For example, Alliant Techsystems remarked
``[c]opies of this data should be given to OSHA personnel'' (Ex. 15:
78). A number of commenters agreed that OSHA personnel should have
access to the OSHA 301 records, even though they did not think that
employees and their representatives should have access to the Form 301
(see, e.g., Exs. 33, 15: 1, 39, 76, 82, 83, 159, 183, 185, 193, 226,
330, 335, 338, 359, 373, 383, 385, 389, 399, 409, 423). For example,
the American Meat Institute (AMI) (Ex. 15: 330) ``[b]elieves that it is
imperative that personal identifiers be explicitly excluded from
information that would be readily available to anyone, with the single
exception of an interested government regulator.'' The Texas Chemical
Council (Ex. 15: 159) argued: ``[L]ogs with employees'' names should
only be accessed by selected individuals (i.e., OSHA inspectors,
medical personnel, etc.). Posting or viewing of OSHA 300 log or 301
reports without names should be the avenue for employees to access
information.''
Other commenters disagreed with one or more of the proposed access
provisions (see, e.g., Exs. 25, 27, 15: 13, 22, 39, 60, 82, 100, 102,
105, 111, 117, 119, 124, 139, 142, 154, 170, 174, 181, 182, 183, 193,
215, 239, 258, 277, 294, 297, 305, 313, 315, 317, 318, 346, 347, 352,
353, 359, 375, 378, 390, 392. 393, 395, 397, 399, 409, 425, 430, 440.)
These commenters raised a wide range of issues. These included the
right of OSHA inspectors to access the records; employers' Fourth
Amendment rights; the way the government handles
[[Page 6067]]
information in its possession; employee privacy concerns; and the
proposed requirement to produce the records within 4 hours. On the
right of OSHA inspectors to access the records, for example, the
Douglas Battery Manufacturing Company (Ex. 15: 82) stated:
[n]one of these records should be * * * used to conduct an OSHA
compliance inspection. Such action would be in direct conflict with
the purpose of the OSHA log which is to track injury and illness
trends so corrective action can be taken by the employer.
OSHA does not agree with this view, because government inspectors
conducting workplace safety and health inspections need these records
to carry out the purposes of the Act, i.e., to identify hazards that
may harm the employees working there. The Part 1904 records provide
information about how workers are injured or made ill at work and help
guide the inspector to the hazards in the workplace that are causing
injury and illness. Although these records may not cover all hazards
that exist in a particular workplace, they help the inspector to
identify hazards more completely during an inspection.
Fourth amendment issues. A number of commenters argued that the
regulatory requirement to provide records to a government inspector
violated Fourth Amendment guarantees against unreasonable searches and
the right to demand a warrant or subpoena before the government can
search a citizen's property (see, e.g., Exs. 25, 27, 15: 124, 139, 154,
174, 193, 215, 258, 305, 315, 318, 346, 375, 390, 392 395, 397). For
example, the Workplace Safety and Health Council (Ex. 15: 313) stated:
[t]his provision would require employers to give OSHA a copy of a
Form 300 and 301. This proposal flies in the face of court decisions
holding that employers may not be penalized for declining to provide
current Form 101 upon request and that, to gain access to them, OSHA
must proceed by subpoena or inspection warrant. Secretary v. Taft
Broadcasting Co., 849 F.2d 990 (6th Cir. 1988); Brock v. Emerson
Electric Co., 834 F.2d 994 (11th Cir. 1987). These decisions are
based on an employer's constitutional rights and they are not
subject to change by OSHA regulation.
These commenters appear to be arguing that including a subpoena or
warrant enforcement mechanism in the text of the rule is necessary to
adequately protect their Fourth Amendment right to privacy. This is not
the case, however. The Fourth Amendment protects against
``unreasonable'' intrusions by the government into private places and
things. Reporting rules that do not depend on subpoena or warrant
powers are not ``unreasonable'' per se. See e.g., California Bankers
Ass'n v. Shultz, 416 U.S. 21, 67 (1974) (upholding reporting regulation
issued under the Bank Secrecy Act of 1970 that did not provide for
subpoenas or warrants where the ``information was sufficiently
described and limited in nature and sufficiently related to a tenable
Congressional determination'' that the information would have a high
degree of usefulness in criminal, tax, or regulatory investigations or
proceedings).
In any event, the text of the rule is silent as to the enforcement
mechanism OSHA will use in what OSHA hopes will be the rare case in
which an employer does not provide a copy of the records on request.
OSHA may proceed by applying for a warrant, or by administrative
subpoena, or by citation where doing so is consistent with the Fourth
Amendment. OSHA notes that employers have a Fourth Amendment right to
require a warrant before an OSHA representative may physically enter a
business establishment for an inspection.
The totality of circumstances surrounding a warrantless or
``subpoena-less'' administrative investigation or investigation program
determines its reasonableness. For example, in McLaughlin v. A.B.
Chance, 842 F.2d at 727 (4th Cir. 1988), the Fourth Circuit upheld a
records access citation against an employer who refused an OSHA
inspector access to its OSHA Logs and forms on the ground that it had a
right to insist on a warrant or subpoena; the Court held that the
inspector had such a right because a summary of the information was
posted annually on the employee bulletin board and the inspector was
lawfully on the premises to investigate a safety complaint. In New York
v. Burger, 482 U.S. 691, 702-703 (1987), the Supreme Court noted that
agencies may gather information without a warrant, subpoena, or consent
if the information would serve a substantial governmental interest, a
warrantless (or subpoena-less) inspection is necessary to further the
regulatory scheme, and the agency acts pursuant to an inspection
program that is limited in time, place, and scope. The Burger court
upheld a warrantless inspection of records during an administrative
inspection of business premises. See also Kings Island (noting that
under Burger a warrantless or subpoena-less inspection of records might
be reasonable, but concluding that the facts of the case did not
satisfy Burger analysis); Emerson Electric (noting that under
California Bankers an agency may gain access to information without a
subpoena or warrant but concluding that the facts of that case were not
comparable to those reviewed in California Bankers).
Given that some warrantless and subpoena-less searches during an
OSHA inspection may be reasonable while others may not, depending on
the circumstances of the individual inspection, OSHA has decided not to
include a subpoena or warrant enforcement mechanism in the text of the
rule. However, OSHA will continue to enforce the rule within the
parameters of applicable court decisions.
Privacy of medical records. A number of commenters questioned the
right of the government to access information in the records because of
privacy concerns about medical records (see, e.g., Exs. 27, 15: 13, 22,
39, 60, 82, 117, 119, 142, 183, 359, 378, 392, 399.) The National
Association of Manufacturers (NAM) (Ex. 15: 142) stated that ``[t]he
privacy interference as proposed that opens up medical records to most
anyone is inconceivable, and should be eliminated.'' The National
Oilseed Processors Association (Ex. 15: 119) recommended:
[t]he issue of privacy is an important one that should be handled
carefully and with sensitivity to individual rights. We believe that
the release of medical records of a specific employee should only be
done after the employee whose records may be released has provided
written permission to the employer to do so.
This section of the final rule does not give unfettered access to
the records by the public, but simply allows a government inspector to
use the records during the course of a safety and health inspection. As
discussed above in the section covering access to the records for
employees, former employees, and employee representatives (Section
1904.35), OSHA does not consider the Forms 300 and 301 to be medical
records, for the following reasons. First, they do not have to be
completed by a physician or other licensed health care professional.
Second, they do not contain the detailed diagnostic and treatment
information usually found in medical records. Finally, the injuries and
illnesses found in the records are usually widely known among other
employees at the workplace where the injured or ill worker works; in
fact, these co-workers may even have witnessed the accident that gave
rise to the injury or illness.
OSHA does not agree that its inspectors should be required to
obtain permission from all injured or ill employees before accessing
the full records. Gaining this permission would make it essentially
impossible to obtain
[[Page 6068]]
full access to the records, which is needed to perform a meaningful
workplace investigation. For example, an inspector would not be able to
obtain the names of employees who were no longer working for the
company to perform follow-up interviews about the specifics of their
injuries and illnesses. The names of the injured or ill workers are
needed to allow the government inspector to interview the injured and
ill workers and determine the hazardous circumstances that led to their
injury or illness. The government inspector may also need the
employee's names to access personnel and medical records if needed
(medical records can only be accessed after the inspector obtains a
medical access order). Additionally, refusing the inspector access to
the names of the injured and ill workers would effectively prohibit any
audit of the Part 1904 records by the government, a practice necessary
to verify the accuracy of employer recordkeeping in general and to
identify problems that employers may be having in keeping records under
OSHA's recordkeeping rules. Adopting the inefficient access method
suggested by these commenters would also place a substantial
administrative burden on the employer, the employees, and the
government. Further, since OSHA inspectors do not allow others to see
the medical records they have accessed, the privacy of employees is not
compromised by CSHO access to the records.
Time for response to requests for records. Paragraphs 1904.40(a)
and (b) of the final rule require records to be made available to a
government inspector within 4 business hours of an oral request for the
records, using the business hours of the establishment at which the
records are located.
A number of commenters opposed the proposed 4-hour records
production requirement as being unreasonable and burdensome (see, e.g.,
Exs. 15: 89, 182, 185, 204, 213, 226, 260, 262, 265, 277, 294, 297,
317, 324, 348, 392, 401, 409, 425). Several of these commenters
recommended longer intervals, ranging from 8 hours (see, e.g., Exs. 15:
9, 133, 204, 271, 294, 343), the ``next business day,'' or 24 hours
(see, e.g., Exs. 15: 200, 225, 277, 394, 425), 72 hours (see, e.g.,
Exs. 15: 65, 154), 6 days (Ex. 15: 226), and 21 days (Ex. 15: 317). On
the other hand, some commenters were concerned that access not be
unduly delayed (see, e.g., Exs. 15: 350, 369, 418, 429). Two commenters
(Exs. 15: 418, 429) recommended that the 4-hour requirement be reduced
to two hours, except when the request would extend the reply period
beyond regular business hours, when 4 hours would be acceptable.
OSHA has concluded that 4 hours is a reasonable and workable length
of time for employers to respond to governmental requests for records.
The 4-hour time period for providing records from a centralized source
strikes a balance between the practical limitations inherent in record
maintenance and the government official's need to obtain these records
and use the information to conduct a workplace inspection.
Some commenters noted that temporary computer or fax failures could
interfere with an employer's ability to comply with the 4-hour
requirement (see, e.g., Exs. 15: 203, 254, 423). One commenter felt
that additional time should be given to employers if equipment failure
prevented the retrieval of the records within four hours (Ex. 15: 423).
The American Society of Safety Engineers (ASSE) questioned whether four
hours is a reasonable time frame for employers who use independent
third parties to maintain their records (Ex. 15: 182).
Several commenters raised concerns that other difficulties might
make it difficult to produce the records in the allotted time. Some
noted that the 4-hour time limit might not be adequate for large
facilities with voluminous records (see, e.g., Exs. 15: 181, 297, 425).
For example, the American Automobile Manufacturers Association (AAMA)
(Ex. 15: 409) stated:
[m]any of our members' locations have only one medical person
working, and to disrupt the normal medical care of injured or ill
employees to produce records within a four hour period is not in the
best interests of the health and safety of all concerned. Many
additional factors must be taken into account in terms of the
production of records such as locating the files, copying the files,
having appropriate staffing to do the copying, and if the records
are on a computer, the computer must not be on down time.
OSHA believes that it is essential for employers to have systems
and procedures that can produce the records within the 4-hour time.
However, the Agency realizes that there may be unusual or unique
circumstances where the employer cannot comply. For example, if the
records are kept by a health care professional and that person is
providing emergency care to an injured worker, the employer may need to
delay production of the records. In such a situation, the OSHA
inspector may allow the employer additional time.
If a government representative requests records of an
establishment, but those records are kept at another location, the 4-
hour period can be measured in accordance with the normal business
hours at the location where the records are being kept. Some commenters
observed that personnel at the centralized location might not be
available to respond to requests if the 4-hour period extended outside
the regular business hours of that location (see, e.g., Exs. 15: 105,
111, 159, 170, 225, 239, 272, 294, 303, 332, 336, 343, 356, 359, 389,
393, 430). This problem could arise under two different scenarios.
First, if the centralized location were in a different time zone than
the site whose records are requested, the business hours of the
respective locations may differ by three or even more hours. Second,
the business hours of a manufacturing plant or a construction site
might differ from the business hours of the company's central offices,
even if the operations are in the same time zone. Under the final rule,
the employer has 4 regular business hours at the location at which the
records are kept in which to comply with the request of a government
representative.
OSHA has designed the final rule to give each employer considerable
flexibility in maintaining records. It permits an employer to
centralize its records, to use computer and facsimile technologies, and
to hire a third party to keep its records. However, an employer who
chooses these options must also ensure that they are sufficiently
reliable to comply with this rule. In other words, the flexibility
provided to employers for recordkeeping must not impede the Agency's
ability to obtain and use the records.
Provide copies. Several commenters objected to the proposed
requirement that employers provide copies of the records to government
personnel without charging the government to do so (see, e.g., Exs. 15:
69, 86, 100, 179, 347, 389, 397, 409). Most of these commenters cited
the paperwork burden on employers as the primary reason for objecting.
Several suggested that the employer be allowed to charge for copies, or
that the government representative make their own copies (see, e.g.,
Exs. 15: 179, 347, 389, 409). This view was expressed in a comment from
the Ford Motor Company (Ex. 15: 347):
[a]n undue burden may be placed on the establishment should a
compliance officer ask for an inordinate amount of records or
records which will not be utilized. Authorized government
representatives should make their own copies and therefore will be
diligent in asking only for those materials they will be utilizing.
[[Page 6069]]
OSHA's experience has been that the vast majority of employers
willingly provide copies to government representatives during safety
and health inspections. Making copies is a routine office function in
almost every modern workplace. With the widespread availability of
copying technology, most workplaces have copy machines on-site or
readily available. The cost of providing copies is minimal, usually
less than five cents per copy. In addition, the government
representative needs to obtain copes of records promptly, so that he or
she can analyze the data and identify workplace hazards. Therefore, in
this final rule, OSHA requires the employer to provide copies of the
records requested to authorized government representatives.
Other Section 1904.40 issues. Commenters raised additional issues
about providing occupational illness and injury information to OSHA
during an inspection. The American Ambulance Association (Ex. 15: 226)
recommended that OSHA ``[p]lace greater emphasis on the fact that
employers do not have to provide Forms 300 and 301 unless OSHA
specifically asks for their submission.'' OSHA believes that the final
rule is clear on this point, because it states that the employer must
provide the records only when asked by an authorized government
representative to do so.
Several commenters stated that all requests for occupational safety
and health information should be made in writing (see, e.g., Exs. 15:
69, 317, 397). OSHA believes that it is neither appropriate nor
necessary to require a government representative to request the
information in writing. Government officials who are conducting
workplace inspections may ask for any number of materials or ask
verbally for information about various matters during the course of an
inspection. Putting these requests in writing would impede workplace
inspections and delay efforts to address workplace hazards.
Section 1904.41 Annual OSHA Injury and Illness Survey of Ten or More
Employers
Section 1904.41 of this final rule replaces section 1904.17,
``Annual OSHA Injury and Illness Survey of Ten or More Employers,'' of
the former rule issued on February 11, 1997. The final rule does not
change the contents or policies of the corresponding section of the
former rule in any way. Instead, the final rule simply rephrases the
language of the former rule in the plain language question-and-answer
format used in the rest of this rule. The following table shows the
text of Section 1904.17 of the former rule, followed by the text of
Section 1904.41 of this final rule.
------------------------------------------------------------------------
Former sections 1904.17 New section 1904.41
------------------------------------------------------------------------
``Annual OSHA Injury and Illness Survey ``Annual OSHA Injury and
of Ten or More Employers'' Illness Survey of Ten or more
Employers''
1904.17(a) Each employer shall, upon 1904.41(a) Basic Requirement.
receipt of OSHA's Annual Survey Form, If you receive OSHA's annual
report to OSHA or OSHA's designee the survey from, you must fill it
number of workers it employed and out and send it to OSHA or
number of hours worked by its OSHA's designee, as stated on
employees for periods designated in the survey form. You must
the Survey Form and such information report the following
as OSHA may request from records information for the year
required to be created and maintained described on the form: (1) the
pursuant to 29 CFR Part 1904. number of workers you
employed; (2) the number of
hours worked by your
employees; and (3) the
requested information from the
records that you keep under
Part 1904.
No comparable provision................ 1904.41(b)(1) Does every
employer have to send data to
OSHA?
No. Each year, OSHA sends
injury and illness survey
forms to employers in certain
industries. In any year, some
employers will receive an OSHA
survey form and others will
not. You do not have to send
injury and illness data to
OSHA unless you receive a
survey form.
1904.17(b) Survey reports shall be 1904.41(b)(2) How quickly do I
transmitted to OSHA by mail or other need to respond to an OSHA
remote transmission authorized by the survey form?
Survey Form within the time period You must send the survey
specified in the Survey Form, or 30 reports to OSHA, or OSHA's
calendar days, whichever is longer.. designee, by mail or other
means described in the survey
form, within 30 calendar days,
or by the date stated in the
survey form, whichever is
later.
1904.17(c) Employers exempted from 1904.41(b)(3) Do I have to
keeping injury and illness records respond to an OSHA survey form
under Secs. 1904.15 and 1904.16 shall if I am normally exempt from
maintain injury and illness records keeping OSHA injury and
required by Secs. 1904.2 and 1904.4, illness records?
and make Survey Reports pursuant to Yes. Even if you are exempt
this Section, upon being notified in from keeping injury and
writing by OSHA, in advance of the illness records under Sec.
year for which injury and illness 1904.1 to Sec. 1904.3, OSHA
records will be required, that the may inform you in writing that
employer has been selected to it will be collecting injury
participate in an information and illness information from
collection.''. you in the following year. If
you receive such a survey
form, you must keep the injury
and illness records required
by Sec. 1904.5 to Sec.
1904.15 and make survey
reports for the year covered
by the survey.
1904.17(d) Nothing in any State plan 1904.41(b)(4) Do I have to
approved under Section 18 of the Act answer the OSHA survey form if
shall affect the duties of employers I am located in a State-Plan
to comply with this section.. State?
Yes. All employers who receive
survey forms must respond to
the survey, even those in
State-Plan States
1904.17(e) Nothing in this section 1904.41(b)(5) Does this section
shall affect OSHA's exercise of its affect OSHA's authority to
statutory authorities to investigate inspect my workplace?
conditions related to occupational No. Nothing in this section
safety and health. affects OSHA's statutory
authority to investigate
conditions related to
occupational safety and
health.
------------------------------------------------------------------------
Thus, section 1904.41 of the final rule merely restates, in a plain
language question-and-answer format, the requirements of former rule
section 1904.17, with one minor change. The final rule adds paragraph
1904.41(b)(1), which contains no requirements or prohibitions but
simply informs the employer that there is no need to send in the Part
1904 injury and illness data until the government asks for it.
Section 1904.42 Requests From the Bureau of Labor Statistics for Data
Section 1904.42 of the final rule derives from the subpart of the
former rule titled ``Statistical Reporting of Occupational Injuries and
Illnesses.'' The former rule described the Bureau of Labor Statistics
annual survey of occupational injuries and illnesses, discussed the
duty of employers to answer the survey, and explained the effect of the
BLS survey on the States operating their own State plans.
[[Page 6070]]
Both OSHA and the BLS collect occupational injury and illness
information, each for separate purposes. The BLS collects data from a
statistical sample of employers in all industries and across all size
classes, using the data to compile the occupational injury and illness
statistics for the Nation. The Bureau gives each respondent a pledge of
confidentiality (as it does on all BLS surveys), and the establishment-
specific injury and illness data are not shared with the public, other
government agencies, or OSHA. The BLS's sole purpose is to create
statistical data.
OSHA collects data from employers from specific size and industry
classes, but collects from each and every employer within those
parameters. The establishment-specific data collected by OSHA are used
to administer OSHA's various programs and to measure the performance of
those programs at individual workplaces.
OSHA proposed to replace sections 1904.20, .21, and .22 of the
former rule with a single reporting provision that would combine the
requirements for BLS and OSHA survey reports into a single section (61
FR 4039). However, since the time of the proposal, OSHA has determined
that the BLS and OSHA information collections warrant separate coverage
because they occur at different times and collect data for different
purposes. When OSHA published final Section 1904.17, Annual OSHA Injury
and Illness Surveys (62 FR 6434, Feb. 11, 1997), the Agency made clear
that its surveys are separate from any collections of injury and
illness data by the BLS. Accordingly, the final rule includes two
separate sections: section 1904.41, which is devoted entirely to the
collection of employer-generated injury and illness data by OSHA, and
section 1904.42, which is devoted to the collection of such data by the
Bureau of Labor Statistics.
Many commenters discussed the need for accurate government
statistics about occupational death, injury and illness; however, very
few of the comments specifically addressed the proposed provisions
relating to employer participation in the BLS survey. The comments OSHA
did receive on this point addressed the burden imposed by requests for
employer records and the potential duplication between the data
collections of OSHA and the BLS (see, e.g., Exs. 15: 9, 163, 184, 390,
402). The comments of the U.S. West Company (Ex. 15: 184) are typical:
[U]S WEST acknowledges the need for the Secretary of Labor to
periodically request reports, including recordkeeping data, from
employers. However, US WEST does ask that OSHA carefully consider
the need for such reports and work to streamline the process and
reduce redundancies. Specifically, US WEST requests that OSHA move
to implement systems that will allow employers to electronically
provide data, such as the data requested in the BLS Survey of
Occupational Injuries and Illnesses. Such a method will be more
effective, in terms of receiving consistently formatted data, and
will be more cost efficient for both employers and the Department of
Labor.
In addition, the DOL should work to avoid duplicate internal
efforts that are costly and time-consuming for the government and
employers. By way of example, US WEST has in the past received
requests from BLS to complete the Survey and from OSHA to complete
the Occupational Injury and Illness Report (Form 196B) for the same
facility. Both surveys collect similar information.
OSHA and the BLS have worked together for many years to reduce the
number of establishments that receive both surveys. These efforts have
largely been successful. However, OSHA and BLS use different databases
to select employers for their surveys. This makes it difficult to
eliminate the overlap completely. We are continuing to work on methods
to reduce further the numbers of employers who receive both BLS and
OSHA survey requests.
OSHA and BLS are also pursuing ways to allow employers to submit
occupational injury and illness data electronically. In 1998, the OSHA
survey allowed employers for the first time to submit their data
electronically, and this practice will continue in future OSHA surveys.
The BLS has not yet allowed electronic submission of these data due to
security concerns, but continues to search for appropriate methods of
electronic submission, and hopes to allow it in the near future.
In this final rule, OSHA has replaced former sections 1904.20 to
1904.22 with a new section 1904.42, which is stated in the form of a
basic requirement and four implementing questions and answers about the
BLS survey. Former section 1904.20 ``Description of statistical
program,'' is not carried forward in the final rule because it merely
described BLS's general legal authority and sampling methodology and
contained no regulatory requirements.
Section 1904.21 of the former rule, titled ``Duties of employers,''
required an employer to respond to the BLS annual survey: ``Upon
receipt of an Occupational Injuries and Illnesses Survey Form, the
employer shall promptly complete the form in accordance with the
instructions contained therein, and return it in accordance with the
aforesaid instructions.''
Paragraphs 1904.42(a), (b)(1) and (b)(2) of the final rule being
published today replace former section 1904.21. Paragraph 1904.42(a)
states the general obligation of employers to report data to the BLS or
a BLS designee. Paragraph 1904.42(b)(1) states that some employers will
receive a BLS survey form and others will not, and that the employer
should not send data unless asked to do so. Paragraph 1904.42(b)(2)
directs the employer to follow the instructions on the survey form when
completing the information and return it promptly.
Paragraph 1904.42(b)(3) of this final rule notes that the BLS is
authorized to collect data from all employers, even those who would
otherwise be exempt, under section 1904.1 to section 1904.3, from
keeping OSHA injury and illness records. This enables the BLS to
produce comprehensive injury and illness statistics for the entire
private sector. Paragraph 1904.42(b)(3) combines the requirements of
former rule paragraphs 1904.15(b) and 1904.16(b) into this paragraph of
the final rule.
In response to the question ``Am I required to respond to a BLS
survey form if I am normally exempt from keeping OSHA injury and
illness records?,'' the final rule states ``Yes. Even if you are exempt
from keeping injury and illness records under Sec. 1904.1 to
Sec. 1904.3, the BLS may inform you in writing that it will be
collecting injury and illness information from you in the coming year.
If you receive such a survey form, you must keep the injury and illness
records required by Sec. 1904.4 to Sec. 1904.12 and make survey reports
for the year covered by the survey.''
Paragraph 1904.42(b)(4) of this final rule replaces section 1904.22
of the former rule. It provides that employers in the State-plan States
are also required to fill out and submit survey forms if the BLS
requests that they do so. The final rule thus specifies that the BLS
has the authority to collect information on occupational fatalities,
injuries and illnesses from: (1) employers who are required to keep
records at all times; (2) employers who are normally exempt from
keeping records; and (3) employers under both Federal and State plan
jurisdiction. The information collected in the annual survey enables
BLS to generate consistent statistics on occupational death, injury and
illness for the entire Nation.
Subpart F. Transition From the Former Rule to the New Rule
The transition interval from the former rule to the new rule
involves several issues, including training and outreach to familiarize
employers and employees about the now forms and
[[Page 6071]]
requirements, and informing employers in newly covered industries that
they are now required to keep OSHA Part 1904 records. OSHA intends to
make a major outreach effort, including the development of an expert
software system, a forms package, and a compliance assistance guide, to
assist employers and recordkeepers with the transition to the new rule.
An additional transition issue for employers who kept records under the
former system and will also keep records under the new system is how to
handle the data collected under the former system during the transition
year. Subpart F of the final rule addresses some of these transition
issues.
Subpart F of the new rule (sections 1904.43 and 1904.44), addresses
what employers must do to keep the required OSHA records during the
first five years the new system required by this final rule is in
effect. This five-year period is called the transition period in this
subpart. The majority of the transition requirements apply only to the
first year, when the data from the previous year (collected under the
former rule) must be summarized and posted during the month of
February. For the remainder of the transition period, the employer is
simply required to retain the records created under the former rule for
five years and provide access to those records for the government, the
employer's employees, and employee representatives, as required by the
final rule at sections 1904.43 and 44.
The proposal did not spell out the procedures that the employer
would have to follow in the transition from the former recordkeeping
rule to the new rule. OSHA realizes that employers will have questions
about how they are required to handle the data collected under the
former system during this transition interval. The final rule maintains
the basic structure and recordkeeping practices of the former system,
but it employs new forms and somewhat different requirements for
recording, maintaining, posting, retaining and reporting occupational
injury and illness information. Information collection and reporting
under the final rule will continue to be done on a calendar year basis.
The effective date for the new rule is January 1, 2001. OSHA agrees
with the commenter who stated that beginning the new recordkeeping
system on ``Any other date [but January 1] would create an
insurmountable number of problems * * *'' (Ex. 27). Accordingly,
employers must begin to use the new OSHA 300 and 301 forms and to
comply with the requirements of this final rule on January 1, 2002.
Some commenters stressed the need for an orderly transition from
the former system to the new system, and pointed out that adequate lead
time is needed to understand and assimilate the changes, make
adjustments in their data management systems, and train personnel who
have recordkeeping responsibilities (see, e.g., Exs. 15: 9, 36, 119,
347, 409).
The transition also raises questions about what should be done in
the year 2002 with respect to posting, updating, and retaining the
records employers compiled in 2001 and previous years. In the
transition from the former rule to the present rule, OSHA intends
employers to make a clean break with the former system. The new rule
will replace the old rule on the effective date of the new rule, and
OSHA will discontinue the use of all previous forms, interpretations
and guidance on that date (see, e.g., Exs. 21, 22, 15: 184, 423).
Employers will be required to prepare a summary of the OSHA Form 200
for the year 2001 and to certify and post it in the same manner and for
the same time (one month) as they have in the past. The following time
table shows the sequence of events and postings that will occur:
------------------------------------------------------------------------
Date Activity
------------------------------------------------------------------------
2001........................................ Employers keep injury and
illness information on
the OSHA 200 form
January 1, 2002............................. Employers begin keeping
data on the OSHA 300 form
February 1, 2002............................ Employers post the 2001
data on the OSHA 200 Form
March 1, 2002............................... Employers may remove the
2001 posting
February 1, 2003............................ Employers post the 2002
data on the OSHA 300A
form
May 1, 2003................................. Employers may remove the
2002 posting
------------------------------------------------------------------------
The final rule's new requirements for dual certification and a 3-
month posting period will not apply to the Year 2000 Log and summary.
Employers still must retain the OSHA records from 2001 and previous
years for five years from the end of the year to which they refer. The
employer must provide copies of the retained records to authorized
government representatives, and to his or her employees and employee
representatives, as required by the new rule.
However, OSHA will no longer require employers to update the OSHA
Log and summary forms for years before the year 2002. The former rule
required employers to correct errors to the data on the OSHA 200 Logs
during the five-year retention period and to add new information about
recorded cases. The former rule also required the employer to adjust
the totals on the Logs if changes were made to cases on them (Ex. 2, p.
23). OSHA believes it would be confusing and burdensome for employers
to update and adjust previous years' Logs and Summaries under the
former system at the same time as they are learning to use the new OSHA
occupational injury and illness recordkeeping system.
Subpart G. Definitions
The Definitions section of the final rule contains definitions for
five terms: ``the Act,'' ``establishment,'' ``health care
professional,'' ``injury and illness,'' and ``you.'' To reduce the need
for readers to move back and forth from the regulatory text to the
Definitions section of this preamble, all other definitions used in the
final rule are defined in the regulatory text as the term is used. OSHA
defines the five terms in this section here because they are used in
several places in the regulatory text.
The Act
The Occupational Safety and Health Act of 1970 (the ``OSH Act'') is
defined because the term is used in many places in the regulatory text.
The final rule's definition is essentially identical to the definition
in the proposal. OSHA received no comments on this definition. The
definition of ``the Act'' follows:
The Act means the Occupational Safety and Health Act of 1970 (84
Stat. 1590 et seq., 29 U.S. 651 et seq.), as amended. The definitions
contained in section (3) of the Act and related interpretations shall
be applicable to such terms when used in this Part 1904.
Employee
The proposed rule defined ``employee'' as that term is defined in
section 3 of the Act and added a Note describing the various types of
employees covered by this
[[Page 6072]]
recordkeeping rule (e.g., ``leased employees,'' ``seasonal
employees''). In the final rule, OSHA has decided that it is not
necessary to define ``employee'' because the term is defined in section
3 of the Act and is used in this rule in accordance with that
definition.
Employer
The proposed rule included a definition of ``employer'' that was
taken from section 3 of the Act's definition of that term. Because the
final rule uses the term ``employer'' just as it is defined in the Act,
no separate definition is included in the final rule.
Establishment
The final rule defines an establishment as a single physical
location where business is conducted or where services or industrial
operations are performed. For activities where employees do not work at
a single physical location, such as construction; transportation;
communications, electric, gas and sanitary services; and similar
operations, the establishment is represented by main or branch offices,
terminals, stations, etc. that either supervise such activities or are
the base from which personnel carry out these activities.
The final rule also addresses whether one business location can
include two or more establishments. Normally, one business location has
only one establishment. However, under limited conditions, the employer
may consider two or more separate businesses that share a single
location to be separate establishments for recordkeeping purposes. An
employer may divide one location into two or more establishments only
when: each of the proposed establishments represents a distinctly
separate business; each business is engaged in a different economic
activity; no one industry description in the Standard Industrial
Classification Manual (1987) applies to the joint activities of the
proposed establishments; and separate reports are routinely prepared
for each establishment on the number of employees, their wages and
salaries, sales or receipts, and other business information. For
example, if an employer operates a construction company at the same
location as a lumber yard, the employer may consider each business to
be a separate establishment.
The final rule also deals with the opposite situation, and explains
when an establishment includes more than one physical location. An
employer may combine two or more physical locations into a single
establishment only when the employer operates the locations as a single
business operation under common management; the locations are all
located in close proximity to each other; and the employer keeps one
set of business records for the locations, such as records on the
number of employees, their wages and salaries, sales or receipts, and
other kinds of business information. For example, one manufacturing
establishment might include the main plant, a warehouse serving the
plant a block away, and an administrative services building across the
street. The final rule also makes it clear that when an employee
telecommutes from home, the employee's home is not a business
establishment for recordkeeping purposes, and a separate OSHA 300 Log
is not required.
The definition of ``establishment'' is important in OSHA's
recordkeeping system for many reasons. First, the establishment is the
basic unit for which records are maintained and summarized. The
employer must keep a separate injury and illness Log (the OSHA Form
300), and prepare a single summary (Form 300A), for each establishment.
Establishment-specific records are a key component of the recordkeeping
system because each separate record represents the injury and illness
experience of a given location, and therefore reflects the particular
circumstances and hazards that led to the injuries and illnesses at
that location. The establishment-specific summary, which totals the
establishment's injury and illness experience for the preceding year,
is posted for employees at that establishment and may also be collected
by the government for statistical or administrative purposes.
Second, the definition of establishment is important because
injuries and illnesses are presumed to be work-related if they result
from events or exposures occurring in the work environment, which
includes the employer's establishment. The presumption that injuries
and illnesses occurring in the work environment are by definition work-
related may be rebutted under certain circumstances, which are listed
in the final rule and discussed in the section of this preamble devoted
to section 1904.5, Determination of work-relatedness. Third, the
establishment is the unit that determines whether the partial exemption
from recordkeeping requirements permitted by the final rule for
establishments of certain sizes or in certain industry sectors applies
(see Subpart B of the final rule). Under the final rule's partial
exemption, establishments classified in certain Standard Industrial
Classification codes (SIC codes) are not required to keep injury and
illness records except when asked by the government to do so. Because a
given employer may operate establishments that are classified in
different SIC codes, some employers may be required to keep OSHA injury
and illness records for some establishments but not for others, e.g. if
one or more of the employer's establishments falls under the final
rule's partial exemption but others do not.
Fourth, the definition of establishment is used to determine which
records an employee, former employee, or authorized employee
representative may access. According to the final rule, employees may
ask for, and must be given, injury and illness records for the
establishment they currently work in, or one they have worked in,
during their employment.
The proposed rule defined an establishment as:
(1) A single physical location that is in operation for 60
calendar days or longer where business is conducted or where
services or industrial operations are performed. (For example: A
factory, mill, grocery store, construction site, hotel, farm, ranch,
hospital, central administrative office, or warehouse.) The
establishment includes the primary work facility and other areas
such as recreational and storage facilities, restrooms, hallways,
etc. The establishment does not include company parking lots.
(2) When distinct and separate economic activities are performed
at a single physical location, each activity may represent a
separate establishment. For example, contract construction
activities conducted at the same physical location as a lumber yard
may be treated as separate establishments. According to the Standard
Industrial Classification (SIC) Manual, Executive Office of the
President, Office of Management and Budget, (1987) each distinct and
separate activity should be considered an establishment when no one
industry description from the SIC manual includes such combined
activities, and the employment in each such economic activity is
significant, and separate reports can be prepared on the number of
employees, their wages and salaries, sales or receipts, or other
types of establishment information.
The final rule modifies this definition in several ways: it deletes
the ``60 days in operation'' threshold, adds language to the definition
to address the concerns of employers who operate geographically
dispersed establishments, describes in greater detail what OSHA means
by separate establishments at one location, and defines which locations
must be considered part of the establishment, and which employee
activities must be considered work-related, for
[[Page 6073]]
recordkeeping purposes. Each of these topics is discussed below.
Subpart G of the final rule defines ``establishment'' as ``a single
physical location where business is conducted or where services or
industrial operations are performed. For activities such as
construction; transportation; communications, electric and gas utility,
and sanitary services; and similar operations, the establishment is
represented for recordkeeping purposes by main or branch offices,
terminals, stations, etc. that either supervise such activities or are
the base from which personnel carry out these activities.'' This part
of the definition of ``establishment'' provides flexibility for
employers whose employees (such as repairmen, meter readers, and
construction superintendents) do not work at the same workplace but
instead move between many different workplaces, often in the course of
a single day.
How the definition of ``establishment'' must be used by employers
for recordkeeping purposes is set forth in the answers to the questions
posed in this paragraph of Subpart G:
(1) Can one business location include two or more establishments?
(2) Can an establishment include more than one physical location?
(3) If an employee telecommutes from home, is his or her home
considered a separate establishment?
The employer may consider two or more economic activities at a
single location to be separate establishments (and thus keep separate
OSHA Form 300s and Form 301s for each activity) only when: (1) Each
such economic activity represents a separate business, (2) no one
industry description in the Standard Industrial Classification Manual
(1987) applies to the activities carried out at the separate locations;
and (3) separate reports are routinely prepared on the number of
employees, their wages and salaries, sales or receipts, and other
business information. This part of the definition of ``establishment''
allows for separate establishments when an employer uses a common
facility to house two or more separate businesses, but does not allow
different departments or divisions of a single business to be
considered separate establishments. However, even if the establishment
meets the three criteria above, the employer may, if it chooses,
consider the physical location to be one establishment.
The definition also permits an employer to combine two or more
physical locations into a single establishment for recordkeeping
purposes (and thus to keep only one Form 300 and Form 301 for all of
the locations) only when (1) the locations are all geographically close
to each other, (2) the employer operates the locations as a single
business operation under common management, and (3) the employer keeps
one set of business records for the locations, such as records on the
number of employees, their wages and salaries, sales or receipts, and
other business information. However, even for locations meeting these
three criteria, the employer may, if it chooses, consider the separate
physical locations to be separate establishments. This part of the
definition allows an employer to consider a single business operation
to be a single establishment even when some of his or her business
operations are carried out on separate properties, but does not allow
for separate businesses to be joined together. For example, an employer
operating a manufacturing business would not be allowed to consider a
nearby storage facility to be a separate establishment, while an
employer who operates two separate retail outlets would be required to
consider each to be a separate establishment.
OSHA received many comments on the proposed definition of
``establishment.'' These are organized by topic and discussed below.
How long must an establishment exist to have a separate OSHA Log.
The proposed rule would have required an establishment to be in
operation for 60 days to be considered an ``establishment'' for
recordkeeping purposes. Under the proposed definition, employers with
establishments in operation for a lesser period would not have been
required to keep a log for that operation. The proposed 60-day
threshold would have changed the definition of ``establishment'' used
in OSHA's former recordkeeping rule, because that rule included a one-
year-in-operation threshold for defining establishments required to
keep a separate OSHA log (Ex. 2, p. 21). The effect of the proposed
change in the threshold would have been to increase the number of
short-duration operations required to maintain separate injury and
illnesses records. In particular, the proposed change would have
affected construction employers and utility companies.
The majority of the comments OSHA received on this issue opposed
the decrease in the duration of the threshold from one year to 60
calendar days. A few commenters, however, supported the proposed 60-day
rule (see, e.g., Exs. 15: 9, 133, 310, 369, 425), and some urged OSHA
to adopt an even shorter time-in-operation threshold (see, e.g., Exs.
15: 369, 418, 429). Typical of the comments favoring an even shorter
period was one from the International Brotherhood of Teamsters (IBT):
[t]he International Brotherhood of Teamsters is encouraged by OSHA's
modification to the definition of an establishment, especially
reducing the requirement for an operation in a particular location
from one year to sixty days. The IBT would strongly support reducing
the requirement to thirty days to cover many low level housing
construction sites, and transient operations, similar to mobile
amusement parks (Ex. 15: 369).
The AFL-CIO agreed: ``* * * [t]he 60-day time period is still too
long. We believe that to truly capture a majority of these transient
worksites, a 30-day time period would be more realistic. A 30-day time
period as the trigger would capture construction activities such as
trenching, roofing, and painting projects which will continue to be
missed if a 60-day time period is used'' (Ex. 15: 418).
Those commenters objecting to the proposed 60-day threshold usually
did so on grounds that requiring temporary facilities to maintain
records would be burdensome and costly and would not increase the
utility of the records (see, e.g., Exs. 21, 15: 21, 43, 78, 116, 122,
123, 145, 170, 199, 213, 225, 254, 272, 288, 303, 304, 305, 308, 338,
346, 349, 350, 356, 358, 359, 363, 364, 375, 389, 392, 404, 412, 413,
423, 424, 433, 437, 443, 475). For example, the Associated Builders and
Contractors, Inc. (ABC) remarked:
ABC agrees with OSHA's sentiment of making injury and illness
records useful, but disagrees that sites in existence for as little
as 60 days need separate injury and illness records. The
redefinition of ``establishment'' will cause enormous problems for
subcontractors in a variety of construction industries. Even
employers with small workforces could be on the site of several
projects at any one time, and in the course of the year could have
sent crews to hundreds of sites. Though they may be on such sites
for only brief periods of time, they will be required under this
proposal to create separate logs for each site, increasing greatly
their paperwork requirements without increasing the amount of
information available to their employees. Projects which last less
than 90 days do not need separate logs. Requiring separate logs for
short-term projects only increases inefficiency and costs, while
doing nothing for safety (Ex. 15: 412).
Many of these commenters argued that a 60-day threshold would be
especially burdensome if it captured small work sites where posting of
the annual summary or mailing the summary to employees would make
little sense because so few cases would
[[Page 6074]]
be captured on each Log. The majority of these commenters suggested
that OSHA retain the former one-year duration threshold in the
definition of establishment (see, e.g., Exs. 15: 78, 123, 225, 254,
305, 356, 389, 404).
Other commenters expressed concern that the proposed 60-day
threshold would create an unreasonable burden on employers in service
industries like telecommunications and other utilities, whose employees
typically report to a fixed location but perform tasks at transient
locations that remain in existence for more than 60 days and would thus
be classified as new ``establishments'' for OSHA recordkeeping purposes
(see, e.g., Exs. 15: 65, 170, 199, 213, 218, 332, 336, 409, 424).
OSHA has reviewed all of the comments on this issue and has
responded by deleting any reference to a time-in-operation threshold in
the definition of establishment but specifying a one-year threshold in
section 1904.30 of the final rule. In response to comments, OSHA has
thus continued the former one-year threshold rather than adopting the
60-day threshold proposed. Under the final rule, employers will be
required to maintain establishment-specific records for any workplace
that is, or is expected to be, in operation for one year or longer.
Employers may group injuries and illnesses occurring to workers who are
employed at shorter term establishments onto one or more consolidated
logs. These logs may cover the entire company; geographic regions such
as a county, state or multi-state area; or individual divisions of the
company. For example, a construction company with multi-state
operations might have separate logs for each state to show the injuries
and illnesses of short-term projects, as well as separate logs for each
construction project expected to last for more than one year.
OSHA finds, based on the record evidence, that the one-year
threshold will create useful records for stable establishments without
imposing an unnecessary burden on the many establishments that remain
in existence for only a few months. OSHA concludes that the one-year
threshold and permitting employers to keep one Log for geographically
dispersed or short-term facilities will also provide more useful injury
and illness records for workers employed in transient establishments.
This will be the case because the records will capture more cases,
which enhances the informational value of the data and permits analysis
of trends.
Geographically Dispersed Workplaces. A number of commenters raised
issues of particular importance to the construction and utility
industries (see, e.g., Exs. 15: 43, 116, 122, 123, 145, 170, 199, 213,
225, 272, 288, 303, 305, 350, 359, 364, 392, 412, 433, 443). In
addition to objections about the 60-days-in-operation threshold in the
definition of establishment, these commenters raised concerns about the
difficulty of keeping records for a mobile and dispersed workforce.
Representative of these comments is the statement by Con Edison (Ex.
15: 213):
Con Edison believes that OSHA's proposal to tie its redefinition
of a permanent establishment to a 60-day time frame, as opposed to
the present one-year limit, would be costly, overly burdensome and
in some cases unworkable. On many occasions work must be performed
on city streets or in out of the way areas during the erection of
overhead transmission and distribution lines. These projects may
carry on for periods greater than the 60-day period specified above
for designation as an establishment. No permanent structures are
erected at these sites and to require maintenance of records there
is impractical. Con Edison believes that the definition of
establishment as set forth in the 1987 Standard Industrial
Classification Manual (see below) should apply.
``For activities such as * * * electric * * * and similar
physically dispersed operations, establishments are represented by
those relatively permanent main or branch offices, terminals,
stations, etc. that are (2) the base from which personnel operate to
carry out these activities. Hence, the individual sites, projects,
fields, networks, lines, or system of such dispersed activities are
not ordinarily considered to be establishments.'' (SIC Manual, 1987,
p. 265).
OSHA agrees that the recordkeeping system must recognize the needs
of operations of this type and has adopted language in the final rule
to provide some flexibility for employers in the construction,
transportation, communications, electric and gas utility, and sanitary
services industries, as well as other employers with geographically
dispersed operations. The final rule specifies, in Subpart G, that
employers may consider main or branch offices, terminals, stations,
etc. that are either (1) responsible for supervising such activities,
or (2) the base from which personnel operate to carry out these
activities, as individual establishments for recordkeeping purposes.
This addition to the final rule's definition of establishment allows an
employer to keep records for geographically dispersed operations using
the existing management structure of the company as the recording unit.
Use of this option will also mean that each Log will capture more
cases, which will, as discussed above, improve the chances of
discovering patterns of occupational injury and illness that can be
used to make safety and health improvements. At the same time, by
requiring records to be kept for any individual construction project
that is expected to last for one year or longer, the final rule ensures
that useful records are generated for more permanent facilities.
More than one establishment at a single location. OSHA's former
rule recognized, for recordkeeping purposes, that more than one
establishment can exist at a single location, although most workplaces
consist of a single establishment at a single location. The final rule
also recognizes that, in some narrowly defined situations, a business
may have side-by-side operations at a single location that are operated
as separate businesses because they are engaged in different lines of
business. In these situations, the Standard Industrial Classification
Manual (OMB 1987) allows a single business location to be classified as
two separate establishments, each with its own SIC code. Like all
government agencies, OSHA follows the OMB classification method and
makes allowances for such circumstances.
The proposal stated that distinct, separate economic activities
performed at a single physical location may each be classified, for
recordkeeping purposes, as a separate establishment. The proposed
definition stated that each distinct and separate economic activity may
be considered an establishment when (1) no one industry description
from the Standard Industrial Classification (SIC) manual includes such
combined activities, (2) the employment in each economic activity is
significant, and (3) separate reports can be prepared on the number of
employees, their wages and salaries, sales or receipts, or other types
of establishment information. The final rule is essentially unchanged
from the proposal on this point, but the language has been modified to
make it clear that the employer may employ this option only in the
enumerated circumstances.
Several commenters were in favor of OSHA's proposed definition of
separate establishments as places engaged in separate economic
activities (see, e.g., Exs. 15: 185, 297, 375) and agreed that when
distinct and separate economic activities are performed at a single
physical location, each activity should be considered a separate
establishment.
Others, however, disagreed with the proposed definition of multiple
establishments at a single location (see, e.g., Exs. 15: 194, 305, 322,
346, 347, 348, 389, 409, 424, 431). The comments
[[Page 6075]]
of the Ford Motor Company (Ex. 15: 347) and the American Automobile
Manufacturing Association (AAMA) (Ex. 15: 409) are representative:
[a]ll economic activities performed at a single location should be
allowed to be placed on a single log. Many of these locations have
only one medical department, payroll, or management. At many of
these locations, separate reports cannot be prepared on the number
of employees per establishment, and at times many of the employees
will work at separate sites within the same single physical
location. To break down the economic activities to record injuries
and illness on different logs is confusing, difficult, and overly
burdensome.
United Parcel Service (UPS) (Ex. 15: 424) added:
[t]he proposal should be amended to make clear that treatment of a
different activity as a separate establishment is optional, not
mandatory--the proposal currently results in unnecessary ambiguity
by saying first that separate activities ``may'' be separate
establishments, and then describing situations in which they
``should be'' considered an establishment. A requirement that such
vaguely defined ``economic activities'' be treated as separate
``establishments'' would be mistaken: employers would be left to
guess what is an ``economic activity'' and when it is ``separate''
from another. Moreover, such mandatory separate recordkeeping would
unnecessarily burden employers with determining when separate
records are required, and with maintaining such separate records.
These commenters understood the proposed language as requiring
employers to keep separate logs if separate economic activities were
being conducted at a single establishment; what OSHA intended, and the
final rule makes clear in Subpart G, is that an employer whose
activities meet the final rule's definition may keep separate logs if
he or she chooses to do so. Thus the final rule includes a provision
that allows an employer to define a single business location as two
separate establishments only under specific, narrow conditions. The
final rule allows the employer to keep separate records only when the
location is shared by completely separate business operations involved
in different business activities (Standard Industrial Classifications)
for which separate business records are available. By providing
specific, narrow criteria, the final rule reduces ambiguity and
confusion about what is required and sets out the conditions that must
be met in order for employers to deviate from the one place-one
establishment concept.
OSHA expects that the overwhelming majority of workplaces will
continue to be classified as one establishment for recordkeeping
purposes, and will keep just one Log. However, allowing some
flexibility for the rare cases that meet the specified criteria is
appropriate. The employer is responsible for determining whether a
given workplace meets the criteria; OSHA will consider an employer
meeting these criteria to be in compliance with the final rule if he or
she keeps one set of records per facility. This policy allows an
employer to keep one set of records for a given location and avoid the
additional burden or inconvenience associated with keeping separate
records.
The McDonnell Douglas Corporation (Ex. 15: 297) and the American
Textile Manufacturers Institute (ATMI) (Ex. 15: 156) commented on a
different scenario, one in which a single establishment could encompass
more than one physical location. ATMI remarked that:
[O]SHA's definition of establishment as ``a single physical
location'' is too restrictive. We believe that OSHA should be more
flexible since many industries have primary facilities with
secondary work facilities that have the same local management. For
example, in the textile industry, a plant may use a warehouse that
is not physically attached but the plant manager is responsible for
the both facilities. We suggest that the text of the rule be
modified to read: ``A single physical location or multiple physical
locations under the same management * * *.''
OSHA agrees that there are situations where a single establishment
that has a satellite operation in close physical proximity to the
primary operation may together constitute a single business operation
and thus be a single establishment. For example, a business may have a
storage facility in a nearby building that is simply an adjunct to the
business operation and is not a separate business location.
OSHA believes that there are situations where establishments in
separate physical locations constitute a single establishment. However,
under the final rule, employers will only be allowed to combine
separated physical locations into a single establishment when they
operate the combined locations as a single business operation under
common management and keep a single set of business records for the
combined locations, such as records on the number of employees, their
wages and salaries, sales or receipts, and other types of business
information.
How OSHA defines an establishment also has implications for the way
company parking lots and recreation facilities, such as company-
provided gymnasiums, ball fields, and the like are treated for
recordkeeping purposes. The 1986 Guidelines excluded these areas from
the definition of establishment and thus did not require injuries and
illnesses occurring to employees at these locations to be recorded
unless the employee was actually performing work in those areas (Ex. 2,
p. 33). The final rule includes these areas in the definition of
establishment but does not require employers to record cases occurring
to employees engaged in certain activities at these locations. For
example, injuries and illnesses occurring at the establishment while
the employee is voluntarily engaged in recreation activities or
resulting from a motor vehicle accident while the employee is commuting
to or from work would not have to be recorded (see section 1904.5). The
following paragraphs discuss OSHA's reasons for taking this approach to
the recording of injuries and illnesses occurring in these locations.
Company Parking Lots and Access Roads. Because the former rule
excluded company parking lots and access roads from the definition of
establishment, injuries and illnesses that occurred to their employees
while on such parking lots and access roads were not considered work-
related and did not have to be recorded on the Log; the proposed rule
would have continued this practice. Many commenters urged OSHA not to
consider injuries and illnesses occurring in these locations work-
related, principally because, in the view of these commenters,
employers have little control over safety and health conditions in
their parking lots (see, e.g., Exs. 15: 9, 65, 78, 95, 105, 107, 111,
119, 136, 137, 141, 154, 159, 194, 203, 204, 218, 224, 225, 260, 262,
265, 266, 277, 278, 288, 304, 337, 389, 401). The comments of the
American Gas Association (AGA) are representative: ``AGA agrees with
OSHA that parking lots and access roads should be excluded from the
definition of establishment and therefore injuries occurring there are
not work-related. Likewise, injuries and illnesses that occur during
commuting must also continue to be excluded'' (Ex. 15: 225). The Texas
Chemical Council (TCC) agreed with this position: ``[T]CC supports
continuing these exceptions. Employers have limited to no control over
variables that contribute to incidents occurring in parking lots or
during commutes to and from work'' (Ex. 15: 159).
Other commenters, however, argued that cases occurring on company
parking lots and access roads should be included in the establishment's
Log (see, e.g., Exs. 15: 61, 157, 310, 407, 432). The Laborer's Health
and Safety
[[Page 6076]]
Fund of North America pointed to the difficulty of separating cases
occurring on the parking lot from those occurring at other locations
within the establishment:
[w]e do not believe that company parking lots should be excluded
from the definition of establishment. The parking lot exclusion
seems to be based on the assumption that parking lots are separate
from loading dock and other work areas. On road construction sites,
``parking lots'' are sometimes right in the middle of the work zones
where heavy equipment is operating. Pedestrian employees being hit
by traffic and moving machinery are responsible for about 41.5% of
the yearly fatalities in road construction and maintenance work. We
believe that excluding parking lots from the definition of
establishment would open the door to under reporting of workplace
fatalities on construction sites, and discourage construction
employers from establishing safe parking areas for their employees
(Ex. 15: 310).
The National Institute for Occupational Safety and Health (NIOSH)
presented statistical data demonstrating the importance of safety and
health measures in employer-owned parking lots:
[N]IOSH does not support continuing the exemption of employer-
owned parking lots from the definition of an establishment. NIOSH
recommends that OSHA require employers to record cases meeting the
work relationship criteria that occur in employer-owned parking
areas. Employers have extensive control over the environmental
conditions in their own parking areas. Environmental conditions that
are under employer control include snow and ice accumulation in walk
areas, vicinity lighting around parked cars and entrance ways, and
security provisions in parking areas. In 1993, parking lots and
garages were identified in a study of violence in the workplace as
the location where 211 fatal injuries occurred [Toscano and Weber
1995]. Eighty-two of these deaths were homicides. Parking lots and
garages accounted for 3.4% of fatal injuries and 7.8% of homicides.
Data on the total number of injuries and illnesses occurring in
parking lots and garages is unknown. However, in 1992 the category
``parking lots'' was listed as the source of injury or illness for
10,000 cases involving days away from work [U.S. Department of Labor
l995a]. The proportion of parking lots and garages owned by the
employer where fatal and nonfatal injuries occurred is not known
(Ex. 15: 407).
OSHA agrees with NIOSH that company parking lots can be highly
hazardous and that employers have considerable control over conditions
in such lots. In addition, OSHA believes that having data on the kinds
of injuries and illnesses occurring on company parking lots and access
roads will permit employers to address the causes of these injuries and
illnesses and thus to provide their employees with better protection.
Accordingly, for recordkeeping purposes, the final rule includes
company parking lots and access roads in the definition of
establishment. However, the final rule recognizes that some injuries
and illnesses occurring on company parking lots and access roads are
not work-related and delineates those that are work-related from those
that are not work-related on the basis of the activity the employee was
performing at the time the injury or illness occurred. For example,
when an employee is injured in a motor vehicle accident that occurs
during that employee's commute to or from work, the injury is not
considered work-related. Thus, the final rule allows the employer to
exclude from the Log injuries and illnesses occurring on company
parking lots and access roads while employees are commuting to or from
work or running personal errands in their motor vehicles (see section
1904.5). However, other injuries and illnesses occurring in parking
lots and on access roads (such as accidents at loading docks, while
removing snow, falls on ice, assaults, etc.) are considered work-
related and must be recorded on the establishment's Log if they meet
the other recording criteria of the final rule (e.g., if they involve
medical treatment, lost time, etc.).
OSHA concludes that the activity-based approach taken in the final
rule will be simpler for employers to use than the former rule's
location-based approach and will result in the collection of better
data. First, the activity-based approach eliminates the need for
employers to determine where a parking lot begins and ends, i.e., what
specific areas constitute the parking lot, which can be difficult in
the case of combined, interspersed, or poorly defined parking areas.
Second, it ensures the recording of those injuries and illnesses that
are work-related but simply happen to occur in these areas. If parking
lots and access roads are totally excluded from the definition of
establishment, employers would not record any injury or illness
occurring in such locations. For example, employers could fail to
record an injury occurring to an employee performing work, such as
building an attendant's booth or demarcating parking spaces, from the
Log.
Recreation facilities. Although the proposed rule would have
included recreational facilities in the definition of establishment, it
would have excluded, for recordkeeping purposes, injuries and illnesses
occurring to employees who were voluntarily participating in wellness
activities at fitness or recreational facilities maintained by the
employer. As discussed above, OSHA believes that including in the final
rule a list of activities that employers can use to rebut the
presumption of work-relatedness for recordkeeping purposes will greatly
simplify the system for employers and result in the collection of more
meaningful data. Including a list of such activities in the final rule
was supported by many commenters (see, e.g., Exs. 15: 65, 151, 152,
170, 179, 180, 204, 246, 350, 392). The comments of the Tosco
Corporation are representative: ``[w]e agree that the recreational
facilities should not be automatically excluded, but rather that the
voluntary use of the facilities govern the work relatedness as OSHA has
indicated. This will make the OSHA regulation consistent with workers
compensation rulings'' (Ex. 15: 246).
An even larger number of commenters disagreed with OSHA's proposed
approach, however, arguing that a location-based, rather than activity-
based, exclusion was more appropriate for recordkeeping purposes (see,
e.g., Exs. 15: 9, 95, 111, 119, 136, 137, 141, 154, 156, 184, 194, 203,
213, 218, 224, 232, 266, 271, 277, 278, 288, 304, 317, 345, 347, 389,
409, 414, 423, 428, 431). For example, the law firm of Constangy,
Brooks & Smith, LLC, argued that excluding facilities is simpler than
excluding activities: ``* * * [t]he current requirements allow a more
simplified analysis of the recreational facility issue and this
analysis should be retained in place of the more complicated analysis
that would be imposed under the Proposed Recordkeeping Rule'' (Ex. 15:
345).
Other employers stressed the concept that changing the exclusion
for recreational facilities would reduce the incentive for employers to
provide such facilities for their employees' use (see, e.g., Exs. 15:
136, 137, 141, 213, 224, 266, 278). The remarks of the Society for
Human Resource Management (SHRM) are typical: ``[t]o presume that the
employee's usage of weight room facilities is involuntary may be
unrealistic and would likely result in the closure of employer provided
weight rooms, golf courses, and other facilities which benefit the
employees * * *'' (Ex. 15: 431).
In the final rule, OSHA has decided to include recreational areas
in the definition of establishment but to include voluntary fitness and
recreational activities, and other wellness activities, on the list of
excepted activities employers may use to rebut the presumption of work-
relatedness in paragraph 1904.5(b)(2). OSHA finds that this approach is
[[Page 6077]]
simpler and will provide better injury and illness data because
recreational facilities are often multi-use areas that are sometimes
used as work zones and sometimes as recreational areas. Several of the
interpretations OSHA has provided over the years address this problem.
For example, the loading dock or warehouse at some establishments has
an area with a basketball hoop that is used for impromptu ball games
during breaks, while at other establishments employees may use a grassy
area to play softball, an empty meeting room for aerobics classes, or
the perimeter of the property as a jogging or bicycling track.
Providing an exception based on activity will make it easier for
employers to evaluate injuries and illnesses that occur in mixed-use
areas of the facility.
This approach is also consistent with OSHA's overall approach in
the final rule of using specific activity-based exemptions to allow the
employer to rebut the presumption of work relationship rather than
providing exemptions by modifying the definition of establishment. OSHA
also does not believe that this approach will provide an incentive for
employers to eliminate recreational and fitness opportunities for their
employees. Both approaches exempt the same injuries from recording, but
the final rule's approach provides employers with a more
straightforward mechanism for rebutting the presumption of work
relationship.
OSHA believes that injuries and illnesses occurring to employees
who are present in recreational areas as part of their assigned work
duties should be recorded on the Log; the final rule thus only permits
employers to exclude recreational activities that are being performed
by the employee voluntarily from their Logs. For example, an injury to
an exercise instructor hired by the company to conduct classes and
demonstrate exercises would be considered work related, as would an
injury or illness sustained by an employee who is required to exercise
to maintain specific fitness levels, such as a security guard.
Private homes as an establishment. Two commenters raised the issue
of whether or not private homes could constitute an establishment (see,
e.g., Exs. 21, 15: 304, 358). The National Federation of Independent
Business (NFIB) stated: ``[N]FIB believes that the definition of
establishment as applied to extremely small work sites, including
private homes, needs to be reexamined'' (Ex. 15: 304). The Organization
Resource Counselors (ORC) added: ``[d]efinition of establishment as
applied to extremely small work sites including private homes needs to
be reexamined. The sixty day rule by itself does not seem unreasonable
except that it captures these small work sites where the requirements
for posting or mailing summaries make little sense'' (Ex. 21).
In the final rule, OSHA has not excluded private homes from the
definition of establishment because many private homes contain home
offices or other home-based worksites, and injuries and illnesses
occurring to employees during work activities performed there on behalf
of their employer are recordable if the employer is required to keep a
Log. However, the final rule makes clear that, in the case of an
employee who telecommutes from his or her home, the home is not
considered an establishment for OSHA recordkeeping purposes and the
employer is not required to keep a separate Log for the home office.
For these workers, the worker's establishment is the office to which
they report, receive direction or supervision, collect pay, and
otherwise stay in contact with their employer, and it is at this
establishment that the Log is kept. For workers who are simply working
at home instead of at the company's office, i.e., for employees who are
telecommuting, OSHA does not consider the worker's home to be an
establishment for recordkeeping purposes, and the definition of
establishment makes this fact clear. OSHA has recently issued a
compliance directive clarifying that OSHA does not and will not inspect
home offices in the employee's home and would inspect a home-based
worksite other than a home office only if the Agency received a
complaint or referral. A fuller discussion concerning the determination
of the work-relatedness of injuries and illnesses that occur when
employees are working in their homes can be found in the discussion of
Sec. 1904.5 Determination of work-relatedness.
Miscellaneous issues. Two commenters recommended that OSHA consider
excluding injuries and illnesses occurring to employees while they were
present in other areas as well (Exs. 15: 203, 389). The International
Dairy Foods Association (IDFA) suggested:
[i]n addition, facilities such as cafeterias/lunch/break/rest/locker
rooms should be exempted except for the employees who work in those
areas. While it is true that other workers may occasionally be
injured in these areas, the inclusion of all injury/illness
information that occurs in these areas only distorts the data. OSHA
should be concerned with the accuracy of any information it requires
and/or collects and should eliminate any non-relevant or extraneous
information. We believe that this anomaly is easily correctable, and
the result will be a more accurate assessment of hazards associated
with a specific workplace (Ex. 15: 203).
OSHA does not agree with this commenter that injuries and illnesses
occurring in such areas are not work-related. For example, many
injuries occurring in lunch rooms involve slippery floors, which the
employer can address by establishing a system for immediate spill
cleanup. However, the final rule does contain an exception from
recordability of cases where the employee, for example, chokes on his
or her food, is burned by spilling hot coffee, etc. (see paragraph
1904.5(b)).
The United Parcel Service (UPS) recommended that OSHA craft its
rule to coincide with the company's personnel records system, stating
``[t]he unit for which an employer maintains personnel records is
presumptively appropriate and efficient; accordingly, OSHA should not
mandate a rule that conflicts with a company's current personnel units
policy'' (Ex. 15: 424). OSHA recognizes that employers would prefer
OSHA to allow companies to keep records in any way they choose.
However, OSHA believes that allowing each company to decide how and in
what format to keep injury and illness records would erode the value of
the injury and illness records in describing the safety and health
experience of individual workplaces and across different workplaces and
industries. OSHA has therefore decided not to adopt this approach in
the final rule.
Two commenters raised the issue of centralized recordkeeping as it
related to the proposed definition of establishment. The General
Electric Company (GE) stated:
[G]E does not support the redefinition of establishment to mean
a single physical location that is in operation for 60 calendar days
or longer. GE field staff frequently establish such establishments
and the illness and injury recording and reporting for these sites
has been done at central locations. The required data therefore is
already collected but the new definition would substantially
increase the administrative burden for employers, without providing
any additional value. Currently, field employees can report an
injury to one well-trained individual who is able to properly
administer the program and keep all required documentation. Under
this new rule, the employer would need to train a significantly
greater number of employees on the proper method for recording
injuries and illnesses, keeping documentation, and ensuring the
submission of this information to the central office for long-term
retention. Further, turnover in the field service operations
necessitates an ongoing training program. GE would prefer to train
field service employees on GE's
[[Page 6078]]
expectations for safe performance and how to perform their jobs
safely, rather then training field service employees on OSHA
recordkeeping regulations (Ex. 15: 349).
OSHA will continue to allow employers to keep their records
centrally and on computer equipment, and nothing in the final rule
would preclude such electronic centralization. OSHA believes that the
definition of establishment in the final rule will have no impact on
the ability of the employer to keep records centrally; however, the
final rule does continue to require employers to summarize and post the
records for each establishment at the end of the year.
The North Carolina Department of Labor (Ex. 15: 186) suggested that
OSHA add a note cross-referencing the rule's exceptions for work
relationship in parking lots, to assist readers in locating them. OSHA
has not added a note to the definition but believes that the list of
exceptions to the presumption of work-relationship will achieve the
objective this commenter intended. In addition, OSHA has included a
table showing changes from the former system to the new system in the
compliance assistance and training materials it is distributing to
employers and employees.
Health Care Professional
The final rule defines health care professional (HCP) as ``a
physician or other state licensed health care professional whose
legally permitted scope of practice (i.e. license, registration or
certification) allows the professional independently to provide or be
delegated the responsibility to provide some or all of the health care
services described by this regulation.''
The proposed rule used the term ``health care provider,'' defined
as a person operating within the scope of his or her health care
license, registration or certification. The final rule uses the term
``health care professional'' to be consistent with definitions used in
the medical surveillance provisions of other OSHA standards (see, e.g.,
the methylene chloride final rule (29 CFR 1910.1052).
OSHA recognizes that injured employees may be treated by a broad
range of health care practitioners, especially if the establishment is
located in a rural area or if the worker is employed by a small company
that does not have the means to provide on-site access to an
occupational nurse or a physician. Although the rule does not specify
what medical specialty or training is necessary to provide care for
injured or ill employees, the rule's use of the term health care
professional is intended to ensure that those professionals providing
treatment and making determinations about the recordability of certain
complex cases are operating within the scope of their license, as
defined by the appropriate state licensing agency.
The rulemaking record reflects a wide diversity of views on this
topic. Many commenters thought the proposed definition was much too
broad, leaving ``[t]he door open for unqualified individuals to make
medical diagnoses'' (see, e.g., Exs. 15: 342, 201). Many commenters
also argued that the proposed definition could be misinterpreted (see,
e.g., Exs. 31, 15: 131, 342, 397). Specifically, many employers thought
the definition could be interpreted to permit untrained or unlicensed
individuals to treat employees or to make medical diagnoses that would
determine the recordability of certain an injuries or illnesses (see,
e.g., Exs. 15: 304, 355, 433). Additionally, some commenters
interpreted the proposed definition to mean that any time an individual
who was certified or trained in cardiopulmonary resuscitation (CPR) or
first aid administered treatment, the case would automatically be
recordable (see, e.g., Exs. 15: 116, 132, 323, 341, 356). For example,
the National Federation of Independent Business noted:
[u]nlike licensed practitioners, those who are registered or
certified are not consistently judged against stringent objective
criteria. Oftentimes registration is obtained by paying a fee and
certification usually entails attending training courses on how to
administer first aid. In any given place of employment it is common
to find at least one employee who is trained and certified in first
aid care. Simple actions on the part of such an employee could
become recordable instances under this proposal. This would only
serve to erroneously inflate statistics thus making the work site
log an inaccurate reflection of occupational injuries and illnesses
(Ex. 15: 304).
Consequently, many commenters advocated qualifying the proposed
definition by limiting it to providers with specific types of training,
such as licensed physicians (see, e.g., Exs. 15: 42, 105) or other
providers, such as dentists, psychiatrists, or clinical psychologists
(see, e.g., Exs. 15: 126, 312, 342, 410, 433, 443) and/or practitioners
operating under their direction, such as physician assistants and
nurses (see, e.g., Exs. 15: 116, 131, 334, 344, 441).
Some commenters proposed eliminating the words ``registration'' and
``certification'' from the definition because these terms have
different meanings in different states, and in some states, some
providers can pay to be certified or registered even though their
credentials are inadequate (see, e.g., Exs. 15: 199, 272, 303, 375). A
few commenters also noted that some registrations and certifications
are given by professional associations rather than state agencies. For
example, according to the American Academy of Physician Assistants:
[w]hile many health care providers receive professional
certification through a private certifying body (e.g. board
certification in cardiology for a doctor), this ``certificate'' is
not automatically tied to any state recognized credential or scope
of practice permitting the provision of health care services. PAs,
for example, are certified by the National Commission on
Certification of Physician Assistants. This certification is not
synonymous with a state certificate or license. As the proposed rule
is currently worded, an NCCPA-certified PA or a physician who is
board certified in cardiology would qualify as a ``health care
provider.'' However, OSHA would not be assured that the PA or
physician was practicing medicine with a license and in compliance
with their state scope of practice. Further, it would be illegal in
all states for a PA or a physician to provide health care services
based solely on their professional certification (Ex. 15: 81).
Still others feared that registered or certified ``alternative
medicine'' providers, such as acupuncturists and massage therapists,
might influence an employer's recordkeeping decision (see, e.g., Exs.
15: 184, 317, 430).
The proposed definition was, however, supported by several unions,
large and small employers, and professional associations representing
those health care personnel who might be excluded by a more restrictive
definition (see, e.g., Exs. 15: 9, 72, 137, 170, 204, 278). These
commenters generally advocated a broader definition because such a
definition would recognize the various types of health care personnel
who may be called on to attend an injured employee (see, e.g., Exs. 15:
181, 350, 376, 392, 417). Typical of these comments was one from The
Fertilizer Institute:
[O]SHA should not qualify and limit this definition to personnel
with specific training due to the wide variation in health care
support and training available throughout the country. Because not
all facilities are located in large metropolitan areas where a wide
variety of medical training is available, it may be difficult, if
not impossible to satisfy Administration-specified minimal training
(Ex. 15: 154).
These commenters did agree, however, that to ensure the availability of
quality health care to employees, health care professionals must be
licensed or
[[Page 6079]]
certified by the state(s) in which they practice and must operate
within the scope of that license or certification (see, e.g., Exs. 24,
15: 81, 181, 350, 417). In particular, several commenters stressed the
need to define the term ``health care professional'' as one practicing
``in accordance with the laws of the applicable jurisdiction'' (Ex. 15:
409; see also Exs. 15: 308, 349).
Additionally, the AFL-CIO cautioned that using a broad definition
of the term ``health care provider'' in this recordkeeping rule should
not supersede or in any way affect the provisions of many OSHA health
standards that specifically require a physician to perform medical
surveillance of occupationally exposed employees:
[a]ll of OSHA's 6(b) health standards, except for Bloodborne
Pathogens, require that the medical examinations required by the
rules be carried out by a physician or under the supervision of a
licensed physician. Many of these standards further require that a
physician evaluate the results of the exam and provide a diagnosis
and opinion as to whether any adverse medical condition has been
detected. Some standards such as lead, benzene, and formaldehyde
also require the physician to determine whether or not an employee
should be removed from his or her job due to occupational exposures.
[In contrast], the proposed recordkeeping rule would allow
diagnoses for conditions covered by these standards (e.g., lead
poisoning, asbestosis, byssinosis) to be made by any health care
provider operating within the scope of their license. We are
concerned that this discrepancy and inconsistency may lead to
confusion about the requirements for medical surveillance under
OSHA's health standards (Ex. 15: 418).
Therefore, the AFL-CIO recommended that OSHA insert a provision in
the proposed recordkeeping rule that would ensure that it is not
interpreted as superseding the requirements of those standards. OSHA
shares this concern and does not intend the use of the term ``health
care professional'' in this rule to modify or supersede any requirement
of any other OSHA regulation or standard.
On the basis of the record, OSHA finds that there is a broad
consensus among commenters that only qualified health care
professionals should make diagnoses and treat injured employees, and
that state licensing agencies are best suited to determine who may
practice and the legal scope of that practice (see, e.g., Exs. 15: 31,
65, 95, 154, 184, 201, 288, 308, 335, 349, 409, 425). The definition in
the final rule ensures that, although decisions about the recordability
of a particular case may be made by a wide range of health care
professionals, the professionals making those decisions must be
operating within the scope of their license or certification when they
make such decisions.
Injury or Illness
The final rule's definition of injury or illness is based on the
definitions of injury and illness used under the former recordkeeping
regulation, except that it combines both definitions into a single term
``injury or illness.'' Under the final rule, an injury or illness is an
abnormal condition or disorder. Injuries include cases such as, but not
limited to, a cut, fracture, sprain, or amputation. Illnesses include
both acute and chronic illnesses, such as, but not limited to, a skin
disease, respiratory disorder, or systemic poisoning. The definition
also includes a note to inform employers that some injuries and
illnesses are recordable and others are not, and that injuries and
illnesses are recordable only if they are new, work-related cases that
meet one or more of the final rule's recording criteria.
Former rule's definition. The former rule also defined these terms
broadly, as did the proposal. The text of the former recordkeeping rule
did not include a definition of injury or illness; instead, the
definitions for these terms were found on the back of the OSHA 200 Log
and in the former Recordkeeping Guidelines (Ex. 2, p. 37). The
definition of occupational injury found in the Guidelines was:
Occupational injury is any injury such as a cut, fracture,
sprain, amputation, etc., which results from a work accident or from
an exposure involving a single incident in the work environment.
Note: Conditions resulting from animal bites, such as insect or
snake bites, or from one-time exposure to chemicals are considered
to be injuries.
An occupational illness was defined as:
[a]ny abnormal condition or disorder, other than one resulting from
an occupational injury, caused by exposure to environmental factors
associated with employment. It includes acute and chronic illnesses
or diseases which may be caused by inhalation, absorption,
ingestion, or direct contact.
The former rule's definitions of injury and illness captured a very
broad range of injuries, including minor injuries such as scratches,
bruises and so forth, which the employer then tested for work-
relatedness and their relationship to the recording criteria. The
former rule's definition of illness was even broader, including
virtually any abnormal occupational condition or disorder that was not
an occupational injury. However, the recording of illnesses under the
former rule was more inclusive than is the case for the final rule
being published today because the former rule required employers to
record every occupational illness, regardless of severity. The final
rule applies the same recording criteria to occupational illnesses as
to occupational injuries, and thus rules out minor illnesses (see the
Legal Authority section and the preamble discussion accompanying
section1904.4).
The former rule's broad definition of illness was upheld in a 1989
Occupational Safety and Health Review Commission decision concerning
the recording of elevated levels of lead in the blood of workers
employed at a battery plant operated by the Johnson Controls Company.
In that decision (OSHRC 89-2614), the Occupational Safety and Health
Review Commission found that:
[a]s the Secretary states in his brief on review ``The broad
applicability of the term ``illness'' adopted in the BLS Guidelines
serves this purpose [to set explicit and comprehensive recording
requirements designed to obtain accurate and beneficial statistics
regarding the causes of occupational disease] by including health
related conditions which may not look like, or may not yet be,
treatable illnesses.'' Accordingly, for the purposes of the
Secretary's recordkeeping regulations promulgated pursuant to
sections 8(c)(1) and (2) of the Act, we accept the Secretary's
interpretation of ``illness'' that includes blood lead levels at or
above 50 ug/100g.
Proposed rule's definition. OSHA proposed a new, broad definition
that encompassed both occupational injury and occupational illness.
This approach was consistent with one of the goals of the proposal, to
eliminate the distinction between injury and illness entirely for
recordkeeping purposes. OSHA's proposed definition of an injury or
illness was:
``Injury or illness'' is any sign, symptom, or laboratory
abnormality which indicates an adverse change in an employee's
anatomical, biochemical, physiological, functional, or psychological
condition (61 FR 4058).
Comments on the proposed definition. Many commenters remarked that
the proposed definition of injury and illness was too broad and all
encompassing (see, e.g., Exs. 25, 33, 15: 95, 120, 156, 174, 176, 199,
201, 213, 231, 273, 282, 301, 305, 318, 331, 346, 348, 375, 383, 386,
395, 420, 424, 425, 430). The views of the National Association of
Manufacturers (NAM) are representative of this view:
[a] second option is to re-examine the scope of the proposed
definition of the term ``injury or illness,'' which appears to go
well beyond the normal understanding of the medical profession. That
definition is so broad it includes virtually any change in the
status of the employee. In contrast, Dorland's
[[Page 6080]]
Illustrated Medical Dictionary defines the term ``illness'' as a
condition marked by ``pronounced deviation from the normal healthy
state.'' Accordingly, the NAM believes the proposed definition of
the term ``injury or illness'' would be far more accurate and
credible if it were modified to read substantially as follows ``Any
sign, symptom, or laboratory abnormality which evidences a
significant adverse change in an employee's anatomical, biochemical,
physiological, functional, or psychological condition, and which
evidences a state of ill-health or a reasonable probability that
ill-health will result (Exs. 25, 15: 305).
The American Iron and Steel Instute (AISI) also objected to the
definition, stating that:
OSHA also fails to provide any guidance as to what constitutes a
``change'' in an employee's condition. If a person is tired at the
end of the day, does that constitute a change in his physical
condition? If a person is grumpy at the end of a long shift, has he
undergone a change in his psychological condition? If a person gains
weight, has his ``anatomical'' condition ``changed''? OSHA's
proposed definition would force employers to address these questions
but provides none of the answers. * * * Finally, in addition to
inviting gross intrusions into employees' lives, the concept of an
``adverse'' psychological change is so vague and burdened with value
judgments that it simply is beyond definition.
Several other commenters urged OSHA to add the word ``significant''
and the phrase ``and which evidences a state of ill-health or a
reasonable probability that ill-health will result'' to the final
rule's definition of injury or illness (see, e.g., Exs. 15: 169, 174,
199, 282, 305, 318, 346, 348, 375, 386, 420, 425).
A number of commenters stated that they did not understand the word
``functional'' in the definition, and particularly how its meaning
differs from that of the word ``physiological'' in the definition (see,
e.g., Exs. 15: 313, 352, 353, 424). Several commenters also suggested
the deletion from the definition of an occupational injury or illness
any reference to signs, symptoms or laboratory abnormalities (see,
e.g., Exs. 33, 15: 176, 231, 273, 301). The Pacific Maritime
Association (Ex. 15: 95) suggested that OSHA delete the proposed
definition of injury or illness and replace it with the following:
``[an injury or illness] is any condition diagnosed by a health care
provider.'' Two commenters suggested excluding psychological conditions
from the definition of injury or illness (Exs. 15: 395, 424). A
discussion of mental conditions and OSHA's reasons for including them
in the definition is included in the preamble discussion of work-
relationship at section 1904.5, Determination of work relatedness. OSHA
has decided to continue to include psychological conditions in the
final rule's definition of injury and illness because many such
conditions are caused, contributed to, or significantly aggravated by
events or exposures in the work environment, and the Agency would be
remiss if it did not collect injury and illness information about
conditions of these types that meet one or more of the final rule's
recording criteria.
In the final rule, OSHA has relied primarily on the former rule's
concept of an abnormal condition or disorder. Although injury and
illness are broadly defined, they capture only those changes that
reflect an adverse change in the employee's condition that is of some
significance i.e. that reach the level of an abnormal condition or
disorder. For example, a mere change in mood or experiencing normal
end-of-the-day tiredness would not be considered an abnormal condition
or disorder. Similarly, a cut or obvious wound, breathing problems,
skin rashes, blood tests with abnormal results, and the like are
clearly abnormal conditions and disorders. Pain and other symptoms that
are wholly subjective are also considered an abnormal condition or
disorder. There is no need for the abnormal condition to include
objective signs to be considered an injury or illness. However, it is
important for employers to remember that identifying a workplace
incident as an occupational injury or illness is only the first step in
the determination an employer makes about the recordability of a given
case.
OSHA finds that this definition provides an appropriate starting
point for decision-making about recordability, and that the
requirements for determining which cases are work-related and which are
not (section 1904.5), for determining which work-related cases reflect
new injuries or illnesses rather than recurrences (section 1904.6), and
for determining which new, work-related cases meet one or more of the
general recording criteria or the additional criteria (sections 1904.7
to 1904.12) together constitute a system that ensures that those cases
that should be recorded are captured and that minor injuries and
illnesses are excluded. In response to the desire of many commenters
for greater clarity, OSHA has added language to the definition of
injury and illness to make it clear that many injuries and illnesses
are not recordable, either because they are not work-related or because
they do not meet any of the final rule's recording criteria.
In general, all of those commenters who opposed the proposed
definition wished OSHA to revise the definition so that it would
provide an initial screening mechanism for excluding minor injuries and
illnesses, even before the status of the case vis-a-vis the geographic
presumption or recording criteria was assessed. OSHA recognizes that
the proposed language referring to any adverse change was too broad,
and has returned to the former language requiring that the change reach
the ``abnormal condition'' level. OSHA recognizes that this is still a
broad definition--deliberately so. After reviewing this issue
thoroughly, OSHA finds that a system that initially defines injury and
illness broadly and then applies a series of screening mechanisms to
narrow the number of recordable incidents to those meeting OSHA and
statutory criteria has several advantages. First, by being inclusive,
this system avoids the problem associated with any ``narrow gate''
approach: that some cases that should be evaluated are lost even before
the evaluation process begins. Second, this approach is consistent with
the broad definitions of these terms that OSHA has used for more than
20 years, which means that the approach is already familiar to
employers and their recordkeepers. Third, adding terminology like
``significant'' and ``reasonable probability that ill-health will
result,'' as commenters suggested, would unnecessarily complicate the
first step in the evaluation process.
Accordingly, the definition of injury and illness in the final rule
differs from the former definition only in minor respects. The
definition is based on the former rule's definitions, simply combining
the separate definitions of injury and illness into a single category,
to be consistent with the elimination of separate recording thresholds
for occupational injuries and occupational illnesses. As discussed
above, OSHA has elected to continue to use a broad definition of
illness or injury. The definition in the final rule also makes it clear
that each injury and illness must be evaluated for work-relatedness, to
decide if it a new case, and to determine if it is recordable before a
covered employer must enter the case in the OSHA recordkeeping system.
``You''
The last definition in the final rule, of the pronoun ``you,'' has
been added because the final rule uses the ``you'' form of the
question-and-answer plain-language format recommended in Federal plain-
language guidance. ``You,'' as used in this rule, mean the employer, as
that term is defined in the Act. This definition makes it clear that
employers are responsible for implementing the requirements of this
[[Page 6081]]
final rule, as mandated by the Occupational Safety and Health Act of
1970 (29 U.S.C. 651 et seq.)
VIII. Forms
This section of the preamble includes a copy of the final forms
package. For a discussion of the contents, the old forms, the proposed
forms, and comments to the proposed forms, refer to the preamble
discussion of Subpart C. 1904.6 Forms. The forms fit on 11" by 14"
legal sized paper. The forms do not appear in the Federal Register due
to printing considerations. To obtain a copy contact OSHA's
Publications Office at (202) 693-1888, order the forms from the OSHA
Internet home page (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.osha.gov) or download the forms from the
OSHA home page.
IX. State Plans
The 25 States and territories with their own OSHA approved
occupational safety and health plans must adopt a rule comparable to
the 29 CFR part 1904 recordkeeping and reporting occupational injuries
and illnesses regulation being published today, with the exception of
the requirements of Sec. 1904.41 Annual OSHA Injury and Illness Survey
of Ten or More Employers. These 25 States are: Alaska, Arizona,
California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan,
Minnesota, Nevada, New Mexico, North Carolina, Oregon, Puerto Rico,
South Carolina, Tennessee, Utah, Vermont, Virginia, Virgin Islands,
Washington, and Wyoming; and Connecticut and New York (for State and
local Government employees only).
The former 29 CFR 1952.4 regulation required that States with
approved State-Plans under section 18 of the OSH Act (29 U.S.C. 667)
must adopt occupational injury and illness recording and reporting
regulations which were ``substantially identical'' to those set forth
in 29 CFR part 1904 because the definitions used by the Federal and
State governments for recordkeeping purposes must be identical to
ensure the uniformity of the collected information. In addition, former
Sec. 1952.4 provided that employer variances or exceptions to State
recordkeeping or reporting requirements in a State-Plan State would be
approved by the Bureau of Labor Statistics. Similarly, a State was
permitted to require supplemental reporting or recordkeeping data