[Federal Register Volume 61, Number 23 (Friday, February 2, 1996)]
[Proposed Rules]
[Pages 4030-4067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-1942]
[[Page 4029]]
_______________________________________________________________________
Part III
Department of Labor
_______________________________________________________________________
Occupational Safety and Health Administration
_______________________________________________________________________
29 CFR Parts 1904 and 1952
Occupational Injury and Illness Recording and Reporting Requirements;
Proposed Rule
Federal Register / Vol. 61, No. 23 / Friday, February 2, 1996 /
Proposed Rules
[[Page 4030]]
DEPARTMENT OF LABOR
Occupational Safety and Health Administration
29 CFR Parts 1904 and 1952
[Docket No. R-02]
Occupational Injury and Illness Recording and Reporting
Requirements
AGENCY: Occupational Safety and Health Administration (OSHA),
Department of Labor.
ACTION: Notice of Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Occupational Safety and Health Administration (OSHA)
proposes to revise Title 29 of the Code of Federal Regulations Part
1904, Recording and Reporting Occupational Injuries and Illnesses, the
supplemental recordkeeping instructions, and replace the recordkeeping
forms. This revision is expected to result in: a greatly simplified
injury and illness recordkeeping system for employers, improved
information concerning occupational injuries and illnesses, increased
utility of the injury and illness records at the establishment/site
level, increased use of modern technology, including computers and
telecommunications equipment, and improved employee awareness and
involvement.
This rulemaking is part of the overall effort to simplify and
revise Part 1904. One section, Reporting of Fatality or Multiple
Hospitalization Incidents, was revised in a separate rulemaking. The
text of the revised Sec. 1904.8, which became effective May 2, 1994, is
included in this proposal as section 1904.12 due to reorganization of
the various sections of Part 1904. However, Sec. 1904.12 in this
proposal includes three additional changes which are intended to
further clarify the earlier revision.
Also included in this rulemaking is the revision of 29 CFR 1952.4.
Sec. 1952.4 establishes the recordkeeping and reporting requirements
for States that have their own occupational safety and health programs
and have been approved by OSHA to enforce safety and health regulations
in their State. The revision of this section is a clarification of the
requirements based on the existing interpretation of the current
Sec. 1952.4.
DATES: 1. Written comments on the proposed regulation must be
postmarked on or before May 2, 1996.
2. A public meeting will be held in Washington, D.C. in the U.S.
Department of Labor auditorium at 200 Constitution Avenue NW beginning
at 8:30 am on March 26, 1996 and extending through March 28th, if
necessary.
ADDRESSES: Comments are to be submitted in writing in quadruplicate, or
1 original (hard copy) and 1 disk (5\1/4\'' or 3\1/2\'') in WP 5.0,
5.1, 5.2, 6.0 or ASCII. Note: Any information not contained on disk;
e.g., studies, articles, etc. must be submitted in quadruplicate. All
comments shall be submitted to: Docket Officer, Docket No. R-02,
Occupational Safety and Health Administration, Room N-2625, U.S.
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210,
telephone (202) 219-7894. Comments of 10 pages or less may be
transmitted by facsimile to (202) 219-5046 provided the original and 4
copies of the comment are sent to the Docket Officer thereafter. Notice
of intention to appear at the meeting is to be sent to Mr. Tom Hall,
OSHA Division of Consumer Affairs, Docket No. R-02, Room N-3647, U.S.
Department of Labor, 200 Constitution Avenue NW., Washington, DC 20210.
FOR FURTHER INFORMATION CONTACT: Ms. Anne Cyr, OSHA, U.S. Department of
Labor, Office of Information and Consumer Affairs, Room N-3647, 200
Constitution Ave., NW., Washington DC 20210. Telephone (202) 219-8148.
SUPPLEMENTARY INFORMATION
I. Background
Administrative History
Following the passage of the Occupational Safety and Health (OSH)
Act of 1970, the Occupational Safety and Health Administration (OSHA)
was formed to promulgate and enforce safety and health regulations and
standards. In 1971, OSHA published the occupational injury and illness
recording and reporting regulation, 29 CFR Part 1904. During that same
year, the Secretary of Labor delegated responsibility for the
occupational injury and illness statistical program to the Bureau of
Labor Statistics (BLS).
Since 1971, OSHA and BLS have operated the injury and illness
recordkeeping system as a cooperative effort. OSHA promulgated and
enforced the recordkeeping regulations while BLS prepared survey forms,
published recordkeeping forms and supplemental instructions, provided
outreach, and conducted the Annual Survey Of Occupational Injuries And
Illnesses. In 1990 the agencies decided to reorganize these duties, and
the Department of Labor announced that the recordkeeping function was
being transferred to OSHA. Pursuant to a memorandum of understanding
(MOU), BLS retained responsibility for conducting the Annual Survey Of
Occupational Injuries And Illnesses, while responsibility for
administering the recordkeeping system was transferred to OSHA (ex. 6).
OSHA's responsibility includes developing, publishing, and providing
outreach for recordkeeping regulations and instructions. In 1991, OSHA
created the Office of Statistics to assume these responsibilities and
to meet the data needs of the agency.
Purpose of the Records
The injury and illness records are intended to have multiple
purposes. One purpose is to provide information for employers and
employees, raising their awareness of the kinds of injuries and
illnesses occurring in the workplace and their related hazards.
Increased employer awareness should result in the identification and
voluntary correction of hazardous workplace conditions. In this role,
the records serve as a ``management tool'' for the administration of
company safety and health programs. Likewise, employees who are
provided information on injuries and illnesses will be more aware of
hazards in the work environment, and therefore more likely to follow
safe work practices, and report workplace hazards. This would generally
raise the overall level of safety and health in the workplace.
Another purpose for keeping these records is to provide OSHA
compliance staff with information which can facilitate safety and
health inspections. During the initial stages of an inspection, the
inspector reviews the injury and illness data for the establishment and
subsequently focuses his or her inspection efforts on the safety and
health hazards revealed by the injury and illness records.
Another use of the injury and illness records is to produce
statistical data on the incidence of workplace injuries and illnesses,
thereby measuring the magnitude of the injury and illness problem
across the country. BLS and participating States make the survey data
available at an aggregate level by industry group for research purposes
and for public information. OSHA also will use employer specific
information to help focus its intervention efforts on the most
dangerous worksites and the worst safety and health hazards.
Regulatory/Interpretation History
When Part 1904 was first implemented, industry safety experts were
concerned that the regulations and the instructions on the forms did
not provide adequate guidance for
[[Page 4031]]
employers. They requested that the Department of Labor provide
additional instructions on employer recordkeeping obligations to
clarify several recordkeeping issues. The Bureau of Labor Statistics
responded in 1972 by publishing supplemental instructions to the
recordkeeping forms, BLS Report 412, What Every Employer Needs To Know
About OSHA Recordkeeping (ex. 1). These supplemental instructions were
designed to meet the needs of employers by providing detailed
information on when and how to record injury and illness cases on the
recordkeeping forms.
A major concept established in the supplemental instructions was
the definition of work relationship. Although the Act and regulations
required ``occupational'' or ``work-related'' injuries and illnesses to
be recorded, neither provided a detailed definition of the terms. The
412 booklet defined work relationship as follows: 1) cases that
occurred at the employer's establishment (on premises) were considered
work-related; and 2) cases that occurred off the employer's premises
were considered work-related if the employee was engaged in a work
activity or was present as a condition of employment.
The BLS 412 booklet was updated in 1973 and 1975. In 1978, the
booklet was again updated to reflect changes in the regulations
exempting small employers from the recordkeeping requirements, and to
allow employers to computerize their records. The updated versions of
the instructions included lists of first aid and medical treatments,
flow charts to describe the recordkeeping decision-making process, and
answers to many of the questions most frequently asked by employers.
In response to requests from labor and industry, and after
publication in the Federal Register and a formal comment period, the
BLS 412 report series was replaced in April of 1986 by the
Recordkeeping Guidelines For Occupational Injuries And Illnesses (ex.
2). The revised version of the supplemental instructions contained an
expanded question and answer format similar to the BLS 412 report, but
provided additional information on the legal basis of the requirements
for recordkeeping under Part 1904. The Guidelines provided clearer
definitions of the types of cases to be recorded, discussed employer
recordkeeping obligations in greater detail, introduced exceptions to
the on-premises presumption of work relationship for instances where
the application of the general rule was considered inappropriate or
overly burdensome, updated the medical treatment/first aid lists, and
addressed new recordkeeping issues. A short version of the Guidelines,
A Brief Guide to Recordkeeping Requirements for Occupational Injuries
and Illnesses (ex. 7), was also produced.
While the 1986 guidelines clarified the existing requirements,
concerns still persisted about the quality and utility of the injury
and illness data. Some employers believed that the guidelines were too
long and that some of the recordkeeping concepts were too complex and
difficult to understand.
These continued concerns about the injury and illness records and
the related statistics led to the 1987 Keystone National Policy
Dialogue on Work-related Illness and Injury Recordkeeping (described in
the Reports Section below). The Keystone dialogue group identified many
problems with the recordkeeping system and provided numerous
suggestions for improving the recordkeeping definitions.
Under a Memorandum of Understanding (MOU) dated July 11, 1990 (ex.
6), the responsibility for administering the national injury and
illness recordkeeping system was transferred from the Bureau of Labor
Statistics to OSHA. As a result, OSHA developed and is now proposing
this revision of the regulations, forms, and supplemental instructions.
Compliance Activities
In 1981 OSHA changed its use of employers' injury and illness
records in its programmed inspection activity. At the beginning of a
planned programmed inspection, the compliance safety and health officer
would do a ``records-only check'' to determine the lost workday injury
incidence rate for the establishment. If the establishment had a rate
below the national average, the compliance officer would end the
inspection.
Beginning in 1986, OSHA discovered numerous instances of
significant underreporting of injuries and illnesses. The Agency began
issuing large penalties for recordkeeping violations. These highly
publicized recordkeeping cases resulted in an even greater awareness
of, and sensitivity to, the injury and illness recordkeeping
requirements among the safety and health community. In 1989, OSHA
discontinued its ``records-only check'' policy of terminating
inspections because of concerns that this policy might have been an
incentive to underrecord injuries and illnesses.
Other Criticisms
OSHA enforcement policies of the 1980s led to increased awareness
of recordkeeping requirements which resulted in renewed criticisms of
the existing recordkeeping system. One persistent objection has been
that the current injury and illness recordkeeping guidelines are too
lengthy and complex. Another objection is that the current definition
of work relationship captures some cases which employers believe should
not be considered work-related. Examples include employees injured
while participating in voluntary wellness programs, cases related to
the consumption of food and drink, and cases involving workers
performing personal tasks at the workplace during non-work hours.
Reports
Since the middle 1980s, several studies have evaluated the utility
of the current OSHA injury and illness recordkeeping system. The
National Research Council (NRC), the Keystone Center, and the General
Accounting Office (GAO) each published reports which evaluated the
recordkeeping system and generated proposals for improvement.
NRC Report: In 1984, because of concern over the possible
underreporting of occupational injuries and illnesses and other issues
related to the accuracy of the national data collected by the Bureau of
Labor Statistics (BLS), Congress appropriated funds for BLS to conduct
a quality assurance study of its Annual Survey on Occupational Injuries
and Illnesses. BLS requested the National Research Council to convene
an expert panel to address the issue of the validity of employer
records and the BLS annual survey, problems related to determining and
reporting occupational diseases, and other issues related to the
collection and use of data on health and safety in the workplace.
In 1987, the National Research Council issued a report, Counting
Injuries and Illnesses in the Workplace: Proposals for a Better System
(ex. 4), which contains the panel's recommendations. Twenty-four
specific recommendations were made (see Ch.8 of ex. 4), which generally
were intended to accomplish the following: (1) modify the BLS Annual
Survey to provide increased information about the injuries and
illnesses recorded; (2) discontinue the supplementary data system and
replace it with a grant program for States and individual researchers
and include criteria for the detail and quality of data collected; (3)
conduct an
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ongoing quality assurance program to identify underreporting on the BLS
Annual Survey by comparing the information on employers' logs with
independent sources; (4) implement occupational disease surveillance,
including collection of exposure data; (5) improve the collection of
national occupational fatality data; (6) implement an administrative
data system which would allow OSHA to be able to obtain individual
establishment data to conduct an ``effective program for the prevention
of workplace injuries and illnesses * * *'' (p.10); and (7) implement a
thorough evaluation of recordkeeping practices in individual
establishments, using additional resources requested from Congress for
that purpose so as to avoid reducing the number of OSHA inspections of
workplace hazards.
Keystone: In 1987, The Keystone Center, an independent non-profit
organization that facilitates national policy consensus-building
dialogues, convened 46 representatives from labor unions, corporations,
health professions, government agencies, Congressional staff and
academia for a year-long dialogue to discuss occupational injury and
illness recordkeeping.
In 1989, Keystone issued its final report, Keystone National Policy
Dialogue on Work-related Illness and Injury Recordkeeping, 1989 (ex.5).
The report focused on four major topics: (1) recordkeeping criteria;
(2) OSHA enforcement procedures; (3) injury and illness data systems;
and (4) occupational illnesses. The report detailed issues within each
topic and made specific recommendations. By topic and in summary, the
Keystone report recommended: (1) revision of various aspects of the
recording criteria; (2) use of injury and illness data by OSHA for
targeting enforcement and revision of the guidelines to make them
easily and uniformly understood; (3) development of a national system
for the collection and dissemination of occupational injury and illness
information; and (4) broadening the type of information collected
concerning occupational illness and making the information available to
employees and government agencies for appropriate purposes such as
research and study.
In 1995, Keystone reassembled a group of business, labor, and
government representatives to discuss draft proposed changes to the
recordkeeping system. OSHA shared its draft proposed revision with the
participants. The draft was also reprinted in several national safety
and health publications. OSHA received feedback on the draft. This
document reflects many of the issues and concerns raised. Written
comments generated by the on-going dialogue have been entered in the
docket (ex. 12).
GAO: An August 1990 report by the United States General Accounting
Office, Options for Improving Safety and Health in the Workplace (ex.
3), discussed the importance of the employer injury and illness
records, including: (1) for many entities, the general descriptive
value to better understand the nature and extent of occupational safety
and health problems; (2) identification by employers and employees of
safety and health problems in the workplace which will enable them to
correct the problems; (3) use by OSHA to conduct research, evaluate
programs, allocate resources, and set and enforce standards. The report
focused on the use of the records in OSHA enforcement, particularly in
targeting industries and worksites for inspections and determining the
scope of inspections.
The GAO report found ``possibly significant injury and illness
underrecording and subsequent underreporting'' (p.3). Reasons for
inaccurate recordkeeping include: (1) intentional underrecording in
response to OSHA inspection policies or employer safety competitions;
(2) unintentional underrecording because of a lack of understanding of
the recording and reporting system; and (3) inaccurate recordkeeping
because of the lack of priority placed on recordkeeping by employers
which results in lack of appropriate supervision of recordkeepers. The
GAO noted that OSHA's revised enforcement procedures, which included
increasing the size of the fines for recordkeeping violations and
modifying its records-review procedures, should help improve the
accuracy of recordkeeping. The GAO recommended that the Department of
Labor conduct studies to assess the accuracy of the records using
independent data sources, evaluate how well employers understand the
revised guidelines [revisions could be tested pre-publication], and
utilize a recordkeeping audit program in selected enforcement
activities.
Advisory Committee on Construction Safety and Health (ACCSH): OSHA
provided the Advisory Committee on Construction Safety and Health
(ACCSH) with a written briefing on the draft proposal to revise 29 CFR
Part 1904 and made an oral presentation to the Committee on October 13,
1994. During its meeting on December 9, 1994, the Committee presented
its recommendations to Assistant Secretary Joseph Dear. The Committee
recommended that OSHA ``immediately publish the NPRM on recordkeeping
for public comment.'' The Committee reiterated its recommendation in
its May, 1995 meeting. In addition, the ACCSH presented OSHA with
specific recommendations on particular provisions of the revision which
are of significance to the construction industry. OSHA has given the
ACCSH recommendations careful consideration and modified the proposal
in several areas.
The ACCSH recommendations, OSHA's written briefing, and the
relevant portions of the transcripts of the October and December 1994
ACCSH meetings, are part of the public record (ex. 10).
OSHA would like to have the benefit of public comment on the ACCSH
recommendations, as well as the specific issues for comment and the
provisions of the proposed rule.
Outline
The following is an outline of the remainder of this preamble. The
regulatory text and appendices follow the preamble.
II. Summary and Explanation
1. Reorganize sections
2. Definitions (Proposed Sec. 1904.3)
a. lost workday
b. employee
c. establishment
d. first aid
e. health care provider
f. medical treatment
g. responsible company official
h. restricted work activity
i. site controlling employer
j. subcontractor employee
k. work environment
l. work related
3. Recording criteria--(Proposed Sec. 1904.4)
4. New case--(Proposed Sec. 1904.4)
5. 7 days to complete--(Proposed Sec. 1904.4)
6. Computerize/centralize Log--(Proposed Sec. 1904.4)
7. Computerize/centralize Incident Records--(Proposed Sec. 1904.5)
8. Year-end summary--(Proposed Sec. 1904.6)
9. Centralize records--(Proposed Sec. 1904.7)
10. Retention--(Proposed Sec. 1904.9)
11. Access--(Proposed Sec. 1904.11)
12. Fatality/multiple hospitalization reporting--(Proposed
Sec. 1904.12)
13. Reports--(Proposed Sec. 1904.13)
14. Exceptions/variance--(Proposed Sec. 1904.15)
15. Subcontractor records--(Proposed Sec. 1904.17)
16. Mandatory Appendix B
a. Blood lead
b. Cadmium
c. Hearing loss
d. Skin disorders
e. Asthma
f. Asbestos
g. Bloodborne
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h. Tuberculosis
i. All other
III. Specific Issues for Comment
Issue 1--Exemptions--(Proposed Sec. 1904.2)
Issue 2--Work relationship/severity--(Mandatory Appendix A)
Issue 3--First aid/medical treatment--(Proposed Sec. 1904.3)
Issue 4--Restricted work activity--(Proposed Sec. 1904.3)
Issue 5--Musculoskeletal disorders--(Mandatory Appendix B)
Issue 6--Reluctance to record
Issue 7--Employee involvement
Issue 8--Access/privacy--(Proposed Sec. 1904.11)
Issue 9--Software
IV. Forms
OSHA 300
OSHA 301
V. Legal Authority
VI. State Plans
VII. Regulatory Impact Assessment
VIII. Regulatory Flexibility Certification
IX. Environmental Impact Assessment
X. Federalism
XI. Public Participation
XII. Paperwork Reduction Act of 1995
XIII. List of Subjects
XIV. Authority
II. Summary and Explanation of the Proposed Rule, Supplemental
Instructions
The changes to the recordkeeping system are being proposed as
regulatory changes in Part 1904. This proposed rule would make 18
significant changes in the requirements of Part 1904:
1. Reorganize the sections within the rule to place the purpose,
coverage and definitions for the rule at the beginning, in keeping with
the commonly accepted regulatory format. The change would also improve
the logical placement of the various sections, provide more meaningful
titles for the sections, and combine sections where appropriate. The
following table summarizes the proposed reorganization of the rule:
Redesignation Table
------------------------------------------------------------------------
New section Old section
------------------------------------------------------------------------
1904.1 Purpose........................ 1904.1 Purpose and scope.
1904.2 Coverage and exemptions........ 1904.15 Small employers and
1904.16 Establishments
classified in Standard
Industrial Classification
codes (SIC) 52-89, (except 52-
54, 70, 75, 76, 79, and 80).
1904.3 Definitions.................... 1904.12 Definitions.
1904.4 OSHA Injury and Illness Log and 1904.2 Log and summary of
Summary (OSHA Form 300 or equivalent). occupational injuries and
illnesses.
1904.5 OSHA Injury and Illness 1904.4 Supplementary record.
Incident Record (OSHA Form 301 or
equivalent).
1904.6 Preparation, certification and 1904.5 Annual summary.
posting of the year-end summary.
1904.7 Location of records............ 1904.14 Employees not in fixed
establishments.
1904.8 Period covered................. 1904.3 Period covered.
1904.9 Retention and updating of 1904.6 Retention of records.
occupational injury and illness
records.
1904.10 Change of ownership........... 1904.11 Change of ownership.
1904.11 Access to records............. 1904.7 Access to records.
1904.12 Reporting of fatality or 1904.8 Reporting of fatality
multiple hospitalization incidents. or multiple hospitalization
incidents.
1904.13 Reports by Employers.......... 1904.20 Description of
statistical program, 1904.21
Duties of employers and
1904.22 Effect of State plans.
1904.14 Recordkeeping under approved 1904.10 Recordkeeping under
State plans. approved State plans.
1904.15 Petitions for recordkeeping 1904.13 Petitions for
exceptions. recordkeeping exceptions.
1904.16 Falsification of, or failure 1904.9 Falsification, or
to keep records or reports. failure to keep records or
reports.
1904.17 Subcontractor records for New Section.
major construction projects..
Mandatory Appendix A. Work-relatedness. New appendix.
Mandatory Appendix B. Recording of New appendix.
specific conditions.
Appendix C. Decision tree for recording New appendix.
occupational injuries and illnesses.
------------------------------------------------------------------------
2. Changes in recordkeeping definitions. The recordkeeping system
is very dependent on the definitions used to determine the recording of
specific cases. Some specific modifications included in the proposed
Sec. 1904.3 are to redefine ``restricted work activity'',
``establishment'', and ``medical treatment''; and provide new
definitions for an ``employee'', ``subcontractor employees'', ``health
care provider'', and ``work environment''. The following addresses each
proposed change to the definitions:
a. Eliminate the term ``lost workdays'', by replacing it with a
definition of ``days away from work''. The OSHA recordkeeping system
has historically defined lost workdays as involving both days away from
work and days of restricted work activity. The proposal would change
the system to eliminate the counting of days of restricted work
activity altogether and only count the number of days away from work.
OSHA has found no evidence that the current restricted work activity
day counts are being used in safety and health program evaluation. It
therefore sees no purpose in continuing the restricted work activity
day count requirement.
Employers will not be required to count days away from work that
extend beyond 180 days (six months). OSHA believes day counts greater
than 180 days add negligible information for injury and illness case
analysis while entailing significant burden when updating the OSHA
records. OSHA solicits comment on the appropriateness of the 180 day
criteria. Should the days away from work count be capped? Is 180 days
too short or long of a period? If so, should the count be capped at 60
days? 90 days? 365 days? or some other time period?
Although not in the proposed rule, OSHA is considering a
modification to the concept of days away from work to include days the
employee would normally not have worked (e.g. weekends, holidays,
etc.). OSHA believes this change to calendar days would greatly
simplify the method of counting days away by eliminating the need to
keep track of, and subtract out, scheduled days off from the total time
between the employee's first day away and the time the employee was
able to return to full duty. OSHA asks for
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comment on whether the reduction of burden associated with this
approach justifies the change in the type of information that will be
collected.
Another potential benefit of changing to calendar days would be
that the day count would more accurately reflect the severity of the
injury or illness. The day count would capture all the days the
employee would not have been able to work at full capacity regardless
of work schedules. For example, if an employee, who normally does not
work weekends, is injured on a Friday and is unable to work until the
following Tuesday, the ``days away from work'' would be three (3),
using calendar days, rather than one (1) day, using work days. If the
same injury occurred on a Monday, the day count would be three (3)
using either calendar or workdays. Changing the day count to calendar
days would eliminate discrepancies based upon work schedules. Thus, the
day counts would be easier to calculate and potentially more
meaningful.
One of the potential problems with this change would be that
economic information on lost work time as a measure of the impact of
job related injuries and illnesses on work life would no longer be
available. Employers could, however, estimate work time lost by
applying a work day/calendar day factor to the recorded day counts.
OSHA solicits comment on the idea of counting calendar days rather than
work days, in particular, what potential do these methods have for
overstating (i.e., counting calendar days) or understating (i.e.
counting work days) the severity of injuries and illnesses?
b. Clarify ``employee''. ``Employee'' is defined in Section 3(6) of
the Act. A regulatory note is included within the definition to clarify
that for OSHA recordkeeping purposes ``employees'' include those
workers whom the employer supervises on a day-to-day basis. These
workers may include workers provided by a temporary help service, a
contractor, or a personnel leasing service. This is consistent with
case law and the interpretation currently used by OSHA.
c. Redefine ``establishment''. The definition of an establishment
describes the location the records cover. To be most useful the records
must be specific to a particular location. ``Establishment'' means 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. This definition is a minor modification of
the definition of establishment found in the Standard Industrial
Classification Manual, 1987. The definition was modified by introducing
the 60 day provision. The current injury and illness recordkeeping
system defines an establishment as a single physical location that is
in operation for 1 year or longer. OSHA believes the proposed shorter
time period (60 days) will facilitate the use of information at more
transient workplaces, such as construction sites. OSHA requests comment
on the costs and benefits of this change.
The proposed definition of establishment includes the primary work
facility and other areas such as recreational and storage facilities,
restrooms, hallways, etc. The current system excludes both parking lots
and recreational facilities from the definition of establishment. OSHA
is proposing that the current practice of excluding the company parking
lot from the establishment be continued, but is including recreational
facilities in the definition (see section below for discussion of
exemptions to work-relatedness). OSHA believes that, by including
related geographic areas, such as recreational facilities, the
recordkeeping system will be simplified. OSHA requests comment on this
change.
The concept of separate establishments for separate activities
found in the current supplemental instructions will be incorporated
into the regulations. 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. Each distinct and separate
activity should be considered an establishment when (1) no one industry
description (Standard Industrial Classification, 1987) includes such
combined activities, and (2) the employment in each such 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. This approach is based on
the definition of an establishment found in the Standard Industrial
Classification Manual, 1987.
d. Redefine ``first aid''. The definition of first aid has been
modified to consist of a comprehensive list of treatments considered
first aid. OSHA has attempted to include those treatments that are, in
and of themselves, associated with only minor cases. Any treatment or
care other than those found on the first aid list would be considered
medical treatment for recordkeeping purposes. OSHA believes injuries
and illnesses requiring only the treatments listed as first aid would
be minor in nature and the recording of them would not be consistent
with the intent of the Act. OSHA also believes a finite list will
reduce confusion, lead to consistent recordkeeping decisions and
greatly simplify the decision-making process.
A treatment may be considered preventive only when there is no
work-related injury or illness prior to its use. A treatment may not be
defined as preventive when given to stop an existing work-related
condition from becoming worse. The only exception to this rule is
tetanus/diphtheria shots/boosters. Tetanus/diphtheria shots/boosters
will continue to be included as first aid treatment. OSHA seeks comment
on whether this approach to recording tetanus/diphtheria shots is
appropriate, or whether they should be considered medical treatment.
For further discussion of first aid and medical treatment, see
Issue 3 in the Issues for Comment section of this preamble.
e. Define ``health care provider''. This is a person operating
within the scope of his or her health care license, registration or
certification. OSHA recognizes that this definition differs from
definitions of health care provider found in other government
regulations and requests comment on its appropriateness for OSHA injury
and illness recordkeeping purposes. OSHA is considering qualifying this
definition, for example by limiting it to personnel with specific
training. OSHA requests comment on this limitation.
f. Redefine ``medical treatment''. Medical treatment is defined to
include any treatment other than first aid treatment. The definition
focuses on the nature of the treatment given and not on the person
administering the treatment (e.g. physician, registered health
professional, etc.). Any treatment not included in the definition of
first aid is considered medical treatment, making the two groups
mutually exclusive. This approach provides clear guidance for employers
and thus eliminates any ``grey areas'' that must be interpreted by
employers. For further discussion of first aid and medical treatment,
see Issue 3 in the Issues for Comment section of this preamble.
g. Define ``Responsible Company Official''. The definition of
responsible company official is central to directing the accountability
for the accuracy and completeness of the OSHA records for an
establishment to the upper management level of the firm. The proposed
definition will place the responsibility to certify the accuracy and
completeness of the Log and
[[Page 4035]]
Summary with an owner of the company, an officer of the corporation,
the highest ranking company official at the establishment or his or her
supervisor.
OSHA believes that by requiring a higher level employee of the firm
to certify the Log, companies will have a greater incentive to take
appropriate measures to assure the accuracy and completeness of the
information.
h. Define ``Restricted Work Activity''. The definition of
restricted work activity will be modified to include injuries and
illnesses where the worker is not capable of performing at full
capacity for a full shift (1) the task he or she was engaged in at the
time of injury or onset of illness; (2) any activity that he or she
performed or was expected to perform on the day of injury or onset of
illness. OSHA believes this definition will focus on the hazardous
tasks that lead to serious injuries and illnesses and lead to greater
consistency in the recording of these more severe cases. For further
discussion of restricted work activity, see Issue 4 in the Issues for
Comment section of this preamble.
I. Define ``site controlling employer''. A site controlling
employer is an employer in the construction industry (SIC codes 15, 16
and 17) with contractual, legal and/or practical control over the
performance, timing, or coordination of other employers' work on the
construction project. An employer (such as a general contractor) that
retains another employer to work on the project is presumed to have
sufficient control over the subcontractor's performance to be
considered a site controlling employer. In addition, an employer (such
as a construction manager) is a site controlling employer if it has
managerial or supervisory authority with respect to employers engaged
on the project, regardless of whether it has a contractual relationship
with those employers. For further discussion of subcontractor records,
see number 15 of this section.
j. Define ``subcontractor employees''. This proposal requires site
controlling employers in the construction industry, for construction
projects with an initial total contract value of $1 million or more, to
maintain separate injury and illness records for certain on-site
employees other than their own, as described in number 15 of this
section. Separate records must be kept for those ``subcontractor
employees'' who are present at a construction project in connection
with their construction job, and are not employees of the site
controlling employer at that construction project.
k. Define ``work environment''. The definition of work environment
is central to determining work-relatedness. The proposed definition is
compatible with the definition traditionally used in the supplemental
instructions. The work environment is defined as the employer's
establishment and other locations where employees are engaged in work-
related activities or are present as a condition of their employment.
l. Define ``work-related''. Although employers are required to
record occupational, or work-related injuries and illnesses, the
current regulations do not provide a definition of work-related. This
proposal includes ``work-related'' in the definition section of the
regulatory text and further clarifies the concept in Mandatory Appendix
A. The proposed definition is based on the definition in the current
supplemental instructions, but is modified to create several new
exceptions to the presumption of work-relatedness, which are explained
below. Additionally, for injury and illness recordkeeping purposes, if
an event in the work environment either caused or contributed to the
case or aggravated a pre-existing condition, then it is considered
work-related.
It has also been suggested that work-relationship should be limited
to where it is demonstrated that the work environment contributed
substantially (fifty percent or more) to the condition. OSHA requests
input on the proper level of work-relationship that should be used.
OSHA requests input on how work contribution can be objectively
measured for such a purpose.
For OSHA injury and illness recordkeeping purposes, the concept of
``work-related'' has traditionally been based on a geographic concept
of the work environment. The presumption has been made that if injuries
or illnesses occur at the employer's establishment, then the case is
work-related. This includes cases occurring while the employee is on
break, in the rest room or in storage areas when located on the
employer's premises. Many employers have criticized this policy, citing
cases that occur at the establishment that they believe have a limited
workplace relationship. As a result, the 1986 guidelines provided for
several exceptions to this rule: removing employee parking lots and
recreational facilities from the definition of the premises under
certain conditions; excluding those cases where symptoms arise at work,
but are caused by accidents or exposures away from work; excluding
cases where the employee was at the establishment as a member of the
general public rather than as an employee; and excluding cases arising
solely from pre-existing conditions.
As recommended in the Keystone report, the proposed revision
continues to use the geography based presumption of work-relatedness.
Parking lots will continue to be excluded from the proposed definition
of establishment. Company access roads will be added to the exclusion.
By excluding parking lots and access roads, some injuries and illnesses
will be excluded while employees are arriving to or leaving from work.
OSHA seeks input on whether the exception for parking lots should be
continued, and/or whether OSHA should continue to exclude injuries and
illnesses that occur while employees are commuting to and from work.
While recreational facilities are being included in the definition
of establishment, injuries or illnesses occurring on company
recreational facilities may still be excluded by the proposed
``voluntary participation in wellness programs'' exception explained
below. The exception will be based on the activity the employee was
engaged in rather than the physical location itself to preserve and
simplify the geography based presumption of work-relatedness.
Several new and/or revised activity-based exceptions to the
presumption of work-relatedness are being proposed. OSHA requests
comment on any and all of the following proposed exceptions:
Cases resulting solely from voluntary participation in
wellness programs, fitness activities, recreational activities, and
medical programs. This would include cases occurring during exercise
activities, blood donations, physicals, flu vaccination programs, etc.
unless the employee was participating as a condition of employment.
Cases involving eating, drinking, or preparing one's own
food when unrelated to occupational factors. This exception would
eliminate the recording of cases such as an employee who cuts a finger
opening a can of food for lunch or is burned while drinking coffee.
Cases that are solely the result of employees doing
personal tasks (totally unrelated to their job) at the establishment
outside of normal working hours. This would exclude those cases where
the employee is injured because the employer was allowing the worker to
use employer equipment at the establishment for personal uses outside
of normal working hours. OSHA requests comment on the appropriateness
of this approach,
[[Page 4036]]
especially on the limitation that these events occur ``outside of
normal work hours''.
Cases resulting solely from acts of violence committed by
family members, a former spouse, or self-inflicted when unrelated to
the employee's work situation. This exemption is based on the
Keystone's recommendation that injuries and illnesses involving an
intentional act of violence in the work environment should be
considered work-related unless it can be clearly established that the
act was not related to the employee's work situation. The intent of the
Keystone group was to exclude those cases that are clearly related to a
domestic dispute that leads to subsequent violence in the workplace,
such as a worker who is assaulted by a spouse or ex-spouse.
For situations involving violence committed by individuals other
than family members or a former spouse, OSHA believes it would be
difficult, if not impossible, to determine if the case was related to
work or to a domestic situation. For this reason, the exemption to
work-relatedness has been limited to violence committed by family
members or former spouses. Personal acts of violence perpetrated by
employees, co-workers, customers, or others would not be excluded. OSHA
requests comment on whether this exemption should be expanded to other
kinds of personal relationships. If so, how should it be defined? Also,
should the definition of family be limited or defined? If so, how?
Cases involving workers who were never engaged in any duty
at work that could have placed stress on the affected body part. This
would exclude those cases where symptoms arise at work, but are caused
by accidents or exposures away from work.
Cases involving workers who were never exposed to any
chemical or physical agent at work that would be associated with the
observed injury or illness. This would also exclude those cases where
symptoms arise at work, but are caused by accidents or exposures away
from work.
Cases resulting solely from activity in voluntary
community or civic projects away from the employer's establishment.
This reflects and clarifies the work-relationship criteria of injuries
and illnesses occurring away from the employer's establishment. Cases
occurring away from the employer's establishment are considered work-
related if the employee is engaged in a work activity or is there as a
condition of employment.
Cases that result solely from normal body movements,
including walking unencumbered, talking, tying a shoe, sneezing, or
coughing, provided the activity does not involve a job-related motion
and the work environment does not contribute to the injury or illness.
The Keystone report recommended this exemption. The report suggested
that injuries and illnesses related to a pre-existing condition should
not be recorded if they are not related to an identifiable work
activity. The exclusion would not apply if it involved repetitive
motion or if the work environment either caused or contributed to the
injury/illness.
A mental illness will not be considered work related,
except mental illnesses associated with post-traumatic stress. OSHA
seeks input on the following questions:
(A) How should OSHA define mental health conditions for
recordkeeping purposes, and when and how should the conditions be
entered into the injury and illness records?
(B) How should employers determine the work-relatedness of mental
health conditions?
(C) How would employers gain knowledge of mental health conditions,
given the issue of patient/doctor confidentiality?
For injury and illness recordkeeping purposes, OSHA has
historically evaluated injuries and illnesses experienced by employees
working in their homes as cases occurring off the employer's premises.
Because alternative work place policies (allowing employees to work out
of their homes) are becoming more commonplace, OSHA is incorporating a
section within Mandatory Appendix A to address the issue of ``work-
relatedness'' for employees who work at home. An injury or illness will
be considered work-related if it occurs while the employee is
performing work for pay or compensation in the home, if the injury or
illness is directly related to the performance of work rather than the
general home environment or setting. OSHA is considering whether this
policy should be maintained, or whether work-relatedness should be
presumed for injuries and illnesses of these employees. OSHA solicits
comment on this issue.
For further discussion of work relatedness, see Issue 2 in the
Issues for Comment section of this preamble.
3. Modify the meaning of ``recordable occupational injury or
illness'' (see proposed section 1904.4 in the regulatory text). At the
present time certain injuries are to be recorded, namely those which
result in death, and injuries other than minor injuries requiring only
first aid and which do not involve loss of consciousness, restriction
of work or motion, medical treatment, or transfer to another job.
Currently, all diagnosed (recognized) occupational illnesses are to be
recorded, regardless of severity. The distinction between illnesses and
injuries is currently based on the nature of the precipitating event or
exposure. Cases which result from instantaneous events are considered
injuries, and cases which result from non-instantaneous events are
considered illnesses. This current distinction between injuries and
illnesses often results in confusion and arbitrary and counter-
intuitive decisions on how to record a case. For example, a small cut
resulting in an infection would be recorded as an injury, even though
infection is commonly considered an illness.
The proposed change would eliminate the need for employers to make
a distinction between injuries and illnesses. One set of criteria would
be used to evaluate all cases thereby minimizing confusion and
inconsistent recording. This proposal represents a major simplification
of the recordkeeping system, which would result in more accurate injury
and illness data, and reduce the recordkeeping burden for employers who
are required to maintain records.
Currently, detailed data for coding cases is collected by BLS only
for injuries and illnesses that involve days away from work. If
recordkeeping changes are made and no changes are made to the current
BLS survey methodology, separate information for injuries and illnesses
will no longer be published by BLS for cases that do not result in days
away from work. Published information would continue to be available
for combined injuries and illnesses, combined injuries and illnesses
resulting in days away from work and combined injuries and illnesses
without days away from work. In addition, if the survey methodology
were modified to collect and code a sample of case characteristics for
cases which do not involve days away from work, separate injury and
illness information could be published for all cases.
The proposed criteria for recordable occupational injuries and
illnesses would require employers to record any case where (1) an
injury or illness exists; and (2) is work-related; and (3) meets one or
more of the following criteria: (a) involves medical treatment; OR (b)
involves death, loss of consciousness, or in-patient hospitalization
for treatment; OR (c) involves a day(s) away from work, restricted work
activity, or job transfer; OR (d) includes any condition as listed in
Mandatory Appendix B.
[[Page 4037]]
4. Provide clear guidance for determining when an injury or illness
case is resolved. Determination of case resolution is particularly
important because employers may be dealing with a reinjury or
recurrence of a previous case and must decide whether the recurrence is
a ``new case'' or a continuation of the original case. Historically,
the supplemental instructions to the recordkeeping regulations required
employers to evaluate previously recorded injuries and illnesses as new
cases if they were aggravated by additional work-related events or
exposures. OSHA developed and included new guidance for evaluating
cumulative trauma disorders as new cases in the Ergonomics Program
Management Guidelines For Meatpacking Plants (ex. 11) which were
published in 1990. The ``Meatpacking Guidelines'' provide: If and when
an employee who has experienced a recordable CTD becomes symptom free
(including both subjective symptoms and physical findings), any
recurrence of symptoms establishes a new case. Furthermore, if the
worker fails to return for medical care within 30 days, the case is
presumed to be resolved. Any visit to a health care provider for
similar complaints after the 30-day interval ``implies reinjury or
reexposure to a workplace hazard and would represent a new case.''
OSHA is now proposing to expand the use of the criteria found in
the ``Meatpacking Guidelines'' to all cases (including injuries and
illnesses of the back and lower extremities), while increasing the
number of days to 45. A recurrence of a previous work-related injury or
illness will be presumed to be a new case when it either (1) results
from a new work accident, or (2) 45 days have elapsed since medical
treatment, restricted work activity and days away were discontinued and
the last signs or symptoms were experienced. This presumption is
rebuttable by medical evidence indicating that the prior case had not
been resolved. In doing so, OSHA believes it will simplify the
decision-making process for determination of a ``new case'' and result
in more complete and consistent data. This method of defining case
resolution/duration should provide better data on the incidence of
illness cases that frequently last only 2-3 weeks (e.g. dermatitis,
some CTDs, etc.) and recur on a regular basis.
OSHA solicits comment on the appropriateness of the 45-day
interval. Is 45 days too short or long of a period? If so, should the
period be 30 days? 60 days? 90 days? or some other time period? Should
different conditions (e.g., back cases, asthma cases, etc.) have
different time intervals for evaluating new cases?
OSHA is also seeking input for an improved way to evaluate new
cases. Should a new category of cases be created to capture information
on recurring injuries and illnesses? One option is to add an additional
``check box'' column to the proposed OSHA Form 300 for identifying
those cases that are recurrences of previously recorded injuries and
illnesses. This would allow employers, employees and OSHA inspectors to
differentiate between one time cases and those that are recurrent,
chronic conditions. This approach may help to remove some of the stigma
of recording these types of disorders and lead to more complete
records. OSHA solicits input on this approach. Will a recurrence column
reduce the stigma of recording these types of cases? Should recurrences
be included in the annual summaries? Should a time limit be used to
limit the use of a recurrence column?
5. The proposal will also require that the proposed forms (OSHA 300
and 301) be completed within 7 calendar days, rather than the currently
required 6 workdays. OSHA believes this will simplify the requirements
by replacing a varying amount of time (depending on the establishment's
work schedule) with a standard week.
6. Enhance the ability to computerize/centralize the OSHA 300 Log
in proposed Sec. 1904.4. The current regulations and instructions
provide for computerization of the OSHA 200 Log, providing that the
employer has available at the establishment a paper copy of the Log
current within 45 calendar days. This proposal would allow employers to
keep their OSHA Log on computer, provided that the employer is able to
produce a copy of the Log within 4 hours of a request by an authorized
government representative who is permitted access to the Log under
proposed Sec. 1904.11. This proposal will reduce the employer's cost of
recordkeeping and allows for maximum flexibility when employers choose
to computerize their records, without decreasing the access to those
records by authorized personnel.
7. Allow for the computerization of Incident Records in proposed
Sec. 1904.5. At the present time, the regulations provide for the
computerization of the OSHA 200 Log, but not for the computerization of
the supplementary record, the OSHA 101. This proposal would allow
employers to computerize both of the forms, which may result in less
paperwork burden for employers without compromising the quality of
those records. The provisions for computerization parallel the proposed
changes for computerization of the OSHA 300 Log found in proposed
Sec. 1904.4.
8. Modify the proposed Sec. 1904.6 (formerly 1904.5) to provide a
new title, require annual average number of employees and total hours
worked by all employees to be included in the year-end summary, and
require a responsible company official to certify the accuracy and
completeness of the records. The section would be titled ``Preparation,
Certification and Posting of the Year-End Summary''. The proposal to
require an estimate of the employees' total hours worked to be listed
on the year-end summary would facilitate hazard analysis and incidence
rate calculation. An injury and illness incidence rate is the number of
injuries and/or illnesses related to a common exposure base of 100
full-time workers. The common exposure base enables meaningful
comparisons of the data regardless of industry, firm size and time
period. Information on annual average employment and total hours worked
can be obtained from payroll or other company records, and is often
available from other reports required by the government, such as
unemployment insurance or workers' compensation reports. For some
employers, the added burden will be negligible because of their
participation in the BLS Annual Survey of Occupational Injuries and
Illnesses which already requires a compilation of this information.
Approximately 10 percent of employers who regularly are required to
keep records are selected each year to participate in the BLS survey.
OSHA requests comment on the costs and benefits associated with this
requirement and suggestions for alternative methods for collecting the
information necessary to calculate these incidence rates.
The proposal will require the employer to post the year-end summary
for the entire year, from February 1 to January 31 of the following
year. Because the records are kept on a calendar year basis, OSHA
believes one month (January) is a reasonable time period for completing
the summary section of the form. The year long posting requirement will
impose no additional burden on the employer while presenting employees
with the opportunity to examine the totals throughout the year. This
requirement will also allow employees hired during any time of the year
to gain knowledge
[[Page 4038]]
about the safety and health environment of the workplace.
9. Modify the location requirements to provide for enhanced
centralization of records. This proposal would combine the current
Sec. 1904.14, Employees not in fixed establishments, and some of the
provisions for centralization of records found in the current
Sec. 1904.2, Log and summary of occupational injury and illness, into
the proposed Sec. 1904.7, Location of records. The new section contains
criteria for records pertaining to employees who either work at an
establishment, or who report to an establishment but work elsewhere, or
who are engaged in physically dispersed work activities. Under the
current system; (1) records pertaining to employees that report to an
establishment must be kept at the establishment, (2) for employees that
report to an establishment but work elsewhere, the records must be kept
at the establishment where they report, and (3) when employees do not
report to a fixed establishment on a regular basis, the records must be
kept in a central location with telephone access.
The location requirements will be modified to allow for the
maintenance of records at an alternate, centralized location. The
current regulations do not provide for centralization of the
supplementary records, but do allow centralization of the OSHA 200 Log,
providing that the employer has available at the establishment a paper
copy of the Log current within 45 calendar days. This proposal would
eliminate the need for a current copy of the required records at the
establishment, provided the employer is able to produce copies of the
records within 4 hours of a request by an authorized government
representative who is permitted access to the records under the
proposed Sec. 1904.11. The employer can either transmit a copy of the
records to the worksite or to the government representative's office.
This proposal allows for greater flexibility when employers choose to
centralize and/or computerize their records without decreasing the
access to those records by authorized individuals and provides for
recent and future technological developments. OSHA requests comment on
situations where the 4 hour requirement may be infeasible. 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?
The current system requires a separate set of records for each
single physical location of a multi-establishment firm, regardless of
employment size of the location. The proposal modifies this requirement
by allowing an employer to consolidate its records for all
establishments with less than 20 employees as long as the establishment
location is specified in the Department column on the proposed OSHA
Form 300.
10. Modify the retention of records section (Sec. 1904.6) by
renumbering and retitling it to Sec. 1904.9 Retention and updating of
work-related injury and illness records, reducing the retention period
from five to three years, and requiring employers to update the injury
and illness records during the three year retention period to include
newly discovered injuries and illnesses. The employer will be required
to revise the Log to reflect changes which occur in previously recorded
injuries and illnesses, including changes in the count of days away
from work. Employers must also update totals or summaries at least
quarterly. OSHA asks whether the summary update should be more or less
frequent? Employers will not be required to update the OSHA Form 301 to
reflect changes in previously recorded cases.
The current Sec. 1904.2 states that employers shall maintain a Log
and summary of injuries and illnesses, which has been interpreted to
require the updating of the Log, but not the updating of supplementary
records or annual summary, to reflect newly discovered cases or to
reflect newly discovered information concerning a case.
The proposed change would clarify the employers' obligations to
update these records during the three year retention period, if and
when they receive additional or updated information concerning a case.
11. Modify the access to records section, currently Sec. 1904.7 and
proposed Sec. 1904.11, to require employers to provide copies of
records to government representatives. The current section states that
``Each employer shall provide, upon request, records provided for in
Secs. 1904.2, 1904.4 and 1904.5 for inspection and copying * * *''. In
some instances, instead of providing copies of the records, some
employers have attempted to provide OSHA compliance personnel only with
access to the records, with the copying to be done by hand. The
proposed change would clearly require employers to provide copies of
the records to government personnel authorized to access injury and
illness records.
The section, compatible with section 1910.20 Access to Employee
Exposure and Medical Records, will also be modified to clarify that the
request for access by authorized government representatives can be made
in person or in writing. This, in conjunction with proposed
Sec. 1904.13, will allow for collection of the records through the
mail.
Currently, only government representatives are authorized access to
the injury and illness supplementary forms (OSHA No. 101). This
proposal will expand the access authorization to employees, former
employees, and their designated representatives. OSHA believes this
will increase employee and/or labor groups' ability to perform
meaningful safety and health program analysis.
The section will also be modified to require employers to provide
copies of the OSHA Log to authorized individuals at no cost. This will
remove existing barriers to easy access to the forms by employees,
former employees and their designated representatives.
The proposal will specify time limits the employer must meet in
providing the injury and illness records once a request of access is
made. Employers must provide: 1) copies of the OSHA Forms 300 and 301
within 4 hours of a request made in person by an authorized government
representative; 2) access to the OSHA Forms 300 and 301 for review by
the close of business on the next scheduled workday when a request is
made by an employee, former employee or their designated
representative(s); 3) copies of the OSHA Forms 300 and 301 within seven
calendar days when a request is made by an employee, former employee or
their designated representative(s); or 4) within 21 calendar days of a
written request received from an authorized government agency. OSHA
solicits input on these time limitations. Are they reasonable? Should
they be shortened or extended?
12. Clarify the requirements of reporting fatalities and multiple
hospitalization incidents, currently Sec. 1904.8 and proposed
Sec. 1904.12. As can be seen in Section III. of the preamble to the
April 1, 1994 final rule of the reporting requirements (FR Vol. 59, No.
63, 15599), it was OSHA's intent to require employers to make their
reports in a manner which allows OSHA immediate access to the
information. However, because the regulatory text reads, ``shall orally
report'', there is the possibility that some employers may leave a
message on an answering machine during non business hours to satisfy
the requirement. Therefore, for clarification purposes, the regulatory
text will be changed to read ``* * * shall, report the fatality/
multiple
[[Page 4039]]
hospitalization by telephone or in person to the Area Office of the
Occupational Safety and Health Administration (OSHA), U. S. Department
of Labor, that is nearest to the site of the incident during regular
business hours, or by using the OSHA emergency toll-free central
telephone number (1-800-321-OSHA [6742]) during non business hours.''
OSHA will also clarify the requirement to report three or more in-
patient hospitalizations which occur at a single site. The site
controlling employer or designee will be responsible for making the
report if no more than two employees of a single employer were
hospitalized but, collectively, three or more workers were hospitalized
as in-patients.
The OSHA toll-free telephone number will also be added to the
regulatory text for clarification purposes.
13. Clarify an employer's responsibility to report injury and
illness information to the Secretary of Labor and the Secretary of
Health and Human Services. The proposed Sec. 1904.13 consolidates
current Secs. 1904.20, 1904.21, and 1904.22 and reflects the transfer
of some responsibilities from the BLS to OSHA. Injury and illness data
required to be maintained by employers may be collected periodically by
mail or other means. Data could be collected for a variety of purposes,
including but not limited to, injury/illness surveillance; development
of information for promulgating or revising safety and health
standards; evaluating the effectiveness of OSHA's enforcement, training
and voluntary programs; public information; and for directing OSHA's
program activities, including workplace inspections.
14. Change the procedure for petitioning recordkeeping exceptions.
The current variance section will be deleted. Instead, all requests for
recording exceptions or variances will be made pursuant to the
procedures in 29 CFR 1905. This change eliminates duplicate sets of
rules/procedures found in Title 29 of the Code of Federal Regulations.
The ability to request an exception or variance to the requirements
under Part 1904 will continue using the procedures outlined under Part
1905.
Under the current recordkeeping requirements, one variance has been
granted to AT&T, and subsequently expanded to the Bell companies. The
variance allows AT&T to keep records of its ``field force'' by
division, rather than by establishment. The centralization of records
provision contained in this proposal will eliminate the continued need
for this variance. All exemptions granted prior to the publication date
of the final rule of revised Part 1904 will be null and void.
15. Require comprehensive records for ``subcontractor employees''
in the construction industry in proposed Sec. 1904.17. The Keystone
report originally proposed the use of ``site logs'' or comprehensive
injury and illness records for major construction activities. The
report noted that construction sites are normally composed of multiple
contractors and subcontractors, each of which may be present at the
site for a relatively short period of time. Under the current
regulations there are no records readily available to represent the
injury and illness experience for the entire site.
Accordingly, the proposal would require site-controlling employers
(or their designees) in the construction industry to maintain a
separate record reflecting the injury and illness experience of
employees working for construction firms other than their own, working
at the construction site when the initial construction contract value
exceeds $1,000,000. In addition to the normal OSHA Log entry and
Incident Record (OSHA Forms 300 and 301) which must be completed for
all injuries and illnesses involving the site controlling employer's
own ``employees'', a separate, additional record requiring an
abbreviated entry shall be completed for injuries and illnesses of
``Subcontractor employees''. (``Subcontractor employees'' are defined
as employees of construction firms (in SICs 15,16, and 17) who are
present at a construction project in connection with their job(s) who
are not employees of the site controlling employer at that construction
project.) The site controlling employer would only have to record
injuries and illnesses of ``subcontractor employees'' who are employed
by construction employers with 11 or more employees at any time during
the previous calendar year. The site-controlling employer would only be
required to enter the name of the injured ``subcontractor employee'',
his or her company, date, and a brief description of the injury or
illness. The site controlling employer has the option of using a
separate OSHA Form 300, an equivalent form, or a collection of records
obtained from the subcontractor employers (e.g. photocopies of
subcontractors' Logs) to satisfy this requirement. The increase in
burden for employers is offset for those employers who already maintain
information on these cases for liability and other purposes. OSHA
invites comment on limiting the requirement to injuries and illnesses
experienced by ``subcontractor employees'' whose employers, because of
their size, are covered by the OSHA injury and illness recordkeeping
requirements. Should this requirement be expanded to record the
injuries and illnesses experienced by all ``subcontractor employees''
on site, regardless of the employer's status under the recordkeeping
requirements coverage?
The site-controlling employer would not be responsible for updating
the records or entering counts of days away from work or restricted
workdays for these ``subcontractor employees''. The ``actual'' employer
of the worker (if not otherwise exempt from OSHA recordkeeping
requirements) would be responsible for completing in detail any entries
on their own OSHA records. Employers covered by the standard for the
Process Safety Management of Highly Hazardous Chemicals; Explosives and
Blasting Agents, 29 CFR 1910.119, are currently required to keep
similar records.
The injuries and illnesses recorded for ``subcontractor employees''
under this requirement would not be included in the national statistics
generated by the BLS Annual Survey. Records for ``subcontractor
employees'' will be kept separately from the OSHA 300 Log; therefore,
while site controlling employers and subcontractors with 11 or more
employees will both maintain the injury and illness records, there will
be no double counting of injuries and illness in the statistical
system.
An alternative to this section has been suggested: Each contractor
with 11 or more employees in an individual project, shall yearly or
upon completion of their work on the project, provide the project
owner, or agent for the owner, with a copy of their project specific
OSHA 300 Log. The project owner would have the responsibility to
collect the data and send it to OSHA, as required. OSHA invites public
comment on this alternative.
16. Provide special guidance in a mandatory appendix for the
recording of specific types of injuries and illnesses (see proposed
Mandatory Appendix B). OSHA believes all of these conditions are
recordable under the current recordkeeping requirements. However, in
order to capture significant non-fatal cases that may not meet the
other general criteria contained in this proposal, OSHA has developed a
listing of specific conditions and corresponding recording criteria for
each condition, and has incorporated the listing into the proposed
regulations as a mandatory appendix. The application of this list will
assist in
[[Page 4040]]
collecting more timely and complete data on non-minor occupational
illnesses and injuries which are serious, significant or disabling but
otherwise would not be captured consistently by the other recording
criteria discussed in change number 3 above. The application of the
list will also provide clear direction that is needed by employers to
determine the proper recording of these conditions, and will
incorporate the recordkeeping guidance that OSHA has developed in
various guidelines, directives and letters of interpretation.
The current recordkeeping system requires ``all'' occupational
illnesses to be recorded. An occupational illness is currently defined
as ``any abnormal condition or disorder'' arising from a non-
instantaneous work-related event or exposure. This definition is
intended to collect comprehensive information on occupational illnesses
as soon as they are detected or recognized. Detection or recognition
can result from a clinical diagnosis, or through lab tests, x-rays, or
other diagnostic techniques. The language of the current general
illness recording criteria is so broad and inclusive that, in theory,
it should encompass all illnesses, regardless of severity or duration.
However, because there is no specific guidance for individual
conditions, employers are often unsure of which diagnostic results
constitute detection or recognition of an illness that should be
entered into the records.
OSHA believes that by providing specific guidance for specific
conditions, even though that guidance may be less inclusive than the
general definitions currently in use, employers will be more likely to
understand and comply with the recordkeeping requirements and the data
will be improved.
In many instances, OSHA standards require employers to conduct
certain tests or medical evaluations. In most cases, the lowest test
results or medical criteria used as action thresholds within the
standards are being proposed as the recording criteria for injury and
illness recordkeeping purposes. OSHA does not believe that the
recordkeeping criteria are restricted by these action thresholds
prescribed in specific standards, but believes that using the same
criteria for different standards and regulations improves the
simplicity of the overall regulatory system. For example, the lowest
biological and other monitoring test results used as threshold levels
in the lead and cadmium standards will be used as the recording
criteria. Under such circumstances, employers are required to use a
single set of criteria to meet the obligations of both rules. The
burden on employers may be reduced when parallel requirements exist.
OSHA believes that early recognition and recording of injuries and
illnesses promote more timely resolution of the hazardous conditions
causing them. The recording of injuries and illnesses in their early
stages provides information that would allow the employer to correct
hazardous conditions before they result in material impairment or do
more serious damage to the employee. For this reason, the proposed
criteria for recordable conditions are not limited to clinical
diagnosis of an illness or injury by a physician. Recording of
conditions listed in the Mandatory Appendix B when the applicable
criteria are met will enhance the utility of the log as an information
source and management tool.
OSHA selected the conditions listed in Appendix B using multiple
criteria, as follows: 1) The condition would not be recorded, or would
not be recorded accurately or consistently, using the general criteria,
2) The condition occurs commonly and large numbers of employers need
specific guidance, and/or 3) The condition has a history of controversy
that warrants specific guidance. If any of these conditions were met,
OSHA also considered 1) existing standards covering the condition or
hazard, 2) existing interpretations covering the proper recording of
the condition, and/or 3) threshold recording criteria that could be
developed using objective methods for determining the proper recording
of an injury or illness. OSHA asks for input on whether these criteria
are appropriate, or whether other criteria should be used for
determining which conditions are listed in Appendix B. OSHA also asks
for input on the specific criteria that have been chosen for each
condition, including the effects of adopting these criteria, possible
alternatives, and the potential benefits and costs associated with
various alternatives.
The listed conditions must be recorded and entered into the injury
and illness records when the proposed criteria are met. Some of these
conditions are:
(a.) Elevated blood lead levels. The current recordkeeping system
requires employers to record cases where an employee's blood lead level
is in excess of 50 micrograms (g) per 100 grams of whole
blood. This has been the criteria in the recordkeeping guidelines since
1986. OSHA is proposing to revise this criteria to 40 micrograms
(g) per 100 grams of whole blood to match the lowest
biological monitoring test result used as an action threshold within
the lead standard (29 CFR 1910.1025(j)(2)(B)). Employers would record
cases where an employee's blood lead level is in excess of 40
micrograms (g) per 100 grams of whole blood.
OSHA asks for input on what level should be used and any other
criteria which could be used to record lead related illnesses.
(b.) Cadmium. Employers would record cases where an employee's
cadmium levels are as follows: level of cadmium in urine (CdU)
exceeding 3 micrograms per gram of creatinine (g/g Cr); level
beta-2 microglobulin in urine (2-M) exceeding 300 micrograms
per gram of creatinine (g/g Cr); or level of cadmium in blood
(CdB) exceeding 5 micrograms per liter of whole blood (g/lwb).
These criteria are based upon the surveillance levels found in the
Cadmium Standard, 1910.1027.
(c.) Hearing loss. Employers would record any work-related case
resulting in an average shift of 15 decibels or more at 2000, 3000 and
4000 hertz in one or both ears as measured from the employee's original
baseline established under 29 CFR Part 1910.95 Occupational Noise
Exposure. The hearing test may be adjusted for aging and the recorded
case may be removed if a retest performed within 30 days does not
confirm the original shift. A presumption of work-relatedness is used
for hearing loss occurring to employees covered by the Occupational
Noise Exposure standard, i.e. those who are exposed to noise levels in
excess of an 85 dB 8 hour time weighted average.
The lowest action level in the noise standard is an average shift
of 10 decibels or more at 2000, 3000 and 4000 hertz. OSHA is proposing
the 15 decibel criteria for recordkeeping purposes to account for
variations in the reliability of individual audiometric testing
results.
OSHA asks for input on which level of a shift in hearing should be
used as a recording criteria; 10 decibels? 20 decibels? 25 decibels?
For each level, what baseline should be used? Preemployment (original)
baseline? Audiometric zero? Is adjusting for presbycusis appropriate?
(d.) Skin disorders. Employers would record skin disorders lasting
beyond 48 hours, including, but not limited to, allergic or irritant
dermatitis. OSHA asks if there are significant skin disorders, such as
urticaria, which may not be captured by this criterion coupled with the
general recording criteria (i.e. medical treatment, restricted work
activity, days away from work, etc.)?
(e.) Asthma and other obstructive airway disease. Employers would
record
[[Page 4041]]
an initial episode of work-related asthma diagnosed by a health care
professional. Employers would also record subsequent work-related
episodes that result in the administration of prescription drugs and/or
diagnosis by a health care provider. There are an estimated 200,000
cases of occupational asthma every year according to the National
Institutes of Health. There are over 250 identified agents found in a
diverse range of materials and industrial processes that can cause
occupational asthma. OSHA believes it is essential to collect
information on episodes of work-related asthma in order to identify and
abate workplace conditions which lead to this illness. OSHA is,
however, concerned that its proposed policy may result in the over-
recording of occupational asthma when employees have chronic, recurrent
cases of the disease. OSHA asks for input on possible ways to reduce or
eliminate over-recording that will not result in the loss of
significant asthma cases. OSHA also requests information on how to
differentiate between episodes of asthma that are induced by the work
environment and those which are not.
(f.) Asbestos-related disorders. Employers would record any case
resulting in a diagnosis by a health care provider of asbestosis or
mesothelioma, or the recognition of any other parenchymal or pleural
abnormality (e.g. radiograph profusion category of 1/1 or greater by
the ILO classification system, pleural plaques and/or pleural
thickening). These criteria are based on information found in Appendix
D of the asbestos standard (29 CFR Part 1010.1001) which discusses the
signs and symptoms of exposure-related disease.
(g.) Bloodborne pathogens diseases (AIDS, HIV infection, Hepatitis
B., etc.). OSHA is proposing to require employers to record exposure
incidents which result in disease (e.g., HIV, hepatitis B, hepatitis
C). Furthermore, OSHA is proposing that employers be required to record
lacerations or puncture wounds involving contact with another person's
blood or other potentially infectious materials since these are clearly
non-minor ``injuries''. OSHA believes that these criteria meet the
Agency's mandate to collect information related to the death, illness,
and injury of workers. OSHA requests comment on whether it is
appropriate to record these small puncture wounds and lacerations if
they do not lead to disease.
The above criteria limit the number of ``exposure incidents'', as
defined in the Bloodborne Pathogens standard, which are to be recorded.
Incidents which result in exposures to blood or other potentially
infectious materials to the eyes, mouth, other mucous membrane, or non-
intact skin would not be OSHA recordable.
OSHA is aware that some health care facilities already collect data
on all bloodborne pathogens exposure incidents because these events are
believed to be of serious magnitude. For example, many employers
collect information about needle punctures, blood splashes to the eyes,
and exposures on non-intact skin. In light of this, OSHA is considering
other options for the recordability criteria of bloodborne pathogens
diseases. One option would require employers to record all ``exposure
incidents''. An ``exposure incident'', as defined in the Bloodborne
Pathogens standard, paragraph (b) of 29 CFR 1910.1030, means ``a
specific eye, mouth, other mucous membrane, non-intact skin, or
parenteral contact with blood or other potentially infectious materials
that results from the performance of an employee's duties''. Using this
same definition for the recordability criteria may simplify the task of
identifying what events need to be recorded for OSHA recordkeeping.
OSHA believes that the collection of information about ``exposure
incidents'' is useful to employers in the control of bloodborne
pathogens hazards. OSHA recognizes, however, that this second option
requires the recording of ``exposures'' rather than strictly illnesses
or injuries.
OSHA is seeking comments on this issue. What data is useful to
collect? Are there other criteria for the recording of bloodborne
infectious diseases which should be considered? What experience do
employers have in data collection systems for this hazard?
In an attempt to address the concerns of personal privacy OSHA is
additionally proposing that the exposure incidents described above be
recorded simply as the type of bloodborne pathogen exposure incident,
regardless of the outcome of the incident. In other words, employers
shall record occupationally acquired bloodborne pathogen disease, such
as Hepatitis B or C, simply as the initial bloodborne exposure incident
and note the type of exposure (e.g. needlestick). The seroconversion
status and specific type of bloodborne disease need not be entered.
This strategy would enable employers to consider data about needle
punctures or lacerations (or other bloodborne pathogens exposure
incidents) while protecting the privacy of individual employee's
medical information. (Please refer to the Issues for Comment section
regarding confidentiality for further discussion of the employee
privacy concerns.) These recording criteria apply to all employees
covered by the Act and are not limited to those covered by the
Bloodborne Pathogens Standard.
(h.) Tuberculosis infection or disease. OSHA is proposing that
newly detected tuberculosis infections and cases of active tuberculosis
in workers with occupational exposure be recorded. The criteria
proposed is consistent with that published by previous OSHA directives
to the field (Memorandum from Leo Carey to Regional Administrators,
February 26, 1993).
Work-relatedness is presumed in work sites where the Centers for
Disease Control and Prevention (CDC) has published reports of epidemics
among workers resulting from workplace exposures, i.e., correctional
facilities; health care facilities; homeless shelters; long-term care
facilities for the elderly; and drug treatment centers. The employer
can rebut this presumption of work relationship by providing evidence
that the employee is known to have had a non-work exposure to active
TB. Examples include situations in which (1) an employee is living in a
household with a person diagnosed with active TB or (2) the Public
Health Department lists the employee as a contact to a case of active
TB.
All other industries would record tuberculosis infections or
disease only if the employee was exposed to tuberculosis in the
worksite. For example, in industries where tuberculosis is not a
recognized hazard resulting from work duties, tuberculosis infections
or disease would not routinely be recorded. However, if a worker with
infectious tuberculosis disease infected their co-workers, the co-
workers' infection/disease would be recordable.
OSHA is seeking to learn if there are other industries, aside from
those listed in the proposal, where reasonably anticipated occupational
exposure to tuberculosis is occurring. Are there other types of
worksites where the presumption of work-relatedness should be applied?
(I.) In addition to these conditions, Mandatory Appendix B provides
guidance for cases resulting in carbon monoxide poisoning, mercury
poisoning, benzene poisoning, UV burning of the eye, lacerations,
hepatitis A, mesothelioma, byssinosis, hypersensitivity pneumonitis,
toxic inhalation injuries, pneumoconiosis, eye injuries,
musculoskeletal disorders, fractures of bones or teeth, and burns.
[[Page 4042]]
OSHA asks for input on possible additions, deletions, and revisions
to the list, different or additional criteria (e.g. diagnostic test
results) or any other information that might be used for establishing
the existence of, and lead to the accurate, consistent recording of
injuries and illnesses.
III. Specific Issues for Comment
OSHA invites comment on the proposed changes in the regulations,
forms and supplemental instructions. OSHA has identified the following
nine issues. For some issues, the agency is considering using
alternative regulatory text which is included in this ``Specific Issues
for Comment'' section. OSHA would like to receive specific comment on
these issues, including any cost and benefit estimates on the various
options discussed below:
Issue 1. Exemptions from OSHA injury and illness recordkeeping
requirements. The current regulations include exemptions from most of
the recordkeeping requirements for small employers (no more than 10
employees) and establishments in specific services and retail standard
industrial classifications (SICs 52-89). Industries traditionally
targeted for OSHA enforcement, which are those in SICs 01 through 51,
are not exempted. (Note the ``exemption'' is really a partial one
because ``exempt'' employers must still comply with the provisions of
the current Sec. 1904.8, Reporting of fatality and multiple
hospitalization accidents (proposed Sec. 1904.12) and Sec. 1904.21,
Duties of employers (proposed Sec. 1904.13). Because the exemption is a
partial one, affected employers are referred to as ``partially
exempt'').
SIC Exemption. In 1983, the industries selected for the partial
exemption were chosen from major industry groups within SICs 52-89, at
the two 2-digit level, whose average lost workday case injury rate for
1978-80 was at or below 75% of the private sector average. Industries
traditionally targeted for OSHA enforcement, which are those in SICs 01
through 51, are not exempted. Application of this formula resulted in
the current list of partially exempted industries:
------------------------------------------------------------------------
SIC Industry
------------------------------------------------------------------------
55..... Automotive dealers and gasoline service stations.
56..... Apparel and accessory stores.
57..... Furniture, home furnishings, and equipment stores.
58..... Eating and drinking places.
59..... Miscellaneous retail.
60..... Depository institutions.
61..... Nondepository institutions.
62..... Security and commodity brokers.
63..... Insurance carriers.
64..... Insurance agents, brokers and service.
65..... Real estate.
67..... Holdings and other investment offices.
72..... Personal services.
73..... Business services.
78..... Motion pictures.
81..... Legal services.
82..... Educational services.
83..... Social services.
84..... Museums, art galleries and botanical & zoological gardens.
86..... Membership organizations.
87..... Engineering, accounting, research, management and related
services.
88..... Private Households.
89..... Miscellaneous services not elsewhere classified.
------------------------------------------------------------------------
Since the partial recordkeeping exemption based on SIC codes was
implemented, the injury and illness rates of the major industry groups
have changed. If the same formula were applied to the 1990-92 lost
workday injury rate statistics for SICs 52-89, at the 2-digit level, no
additional industries would be added to the partial exemption. Two
industries would lose their partial exemption and be required to keep
records: eating and drinking places (SIC 58), and museums, art
galleries and botanical & zoological gardens (SIC 84).
Within certain major industry groups (2-digit SICs), there exist
high hazard industries and industry groups (4 and 3-digit SICs) (ex.8).
To address this ``nesting'' problem, OSHA applied the 1983 evaluation
criteria to the 1990 through 1992 BLS lost workday injury data at the
3-digit SIC level. Where no information was available at the 3-digit
level, OSHA used information at the 2-digit level.
The proposed text in this NPRM modifies the partial exemption for
industries in Standard Industrial Classifications (SICs) 52 through 89
to reflect this refinement to address the ``nesting'' problem. Current
partially exempt industries which would have to comply are:
SIC 553 Auto and Home Supply Stores,
SIC 555 Boat Dealers,
SIC 571 Home Furniture and Furnishings Stores,
SIC 581 Eating Places,
SIC 582 Drinking Places,
SIC 596 Nonstore Retailers,
SIC 598 Fuel Dealers,
SIC 651 Real Estate Operators and Lessors,
SIC 655 Land Subdividers and Developers,
SIC 721 Laundry, Cleaning, and Garment Services,
SIC 734 Services to Dwellings and Other Buildings,
SIC 735 Miscellaneous Equipment Rental and Leasing,
SIC 736 Personnel Supply Services,
SIC 833 Job Training and Vocational Rehabilitation Services,
SIC 836 Residential Care,
SIC 842 Arboreta and Botanical or Zoological Gardens, and
SIC 869 Membership Organizations Not Elsewhere Classified.
The following industries, currently required to comply with the
injury and illness recordkeeping regulation, will be partially exempt:
SIC 525 Hardware Stores,
SIC 752 Automobile Parking,
SIC 764 Reupholstery and Furniture Repair,
SIC 793 Bowling Centers,
SIC 801 Offices and Clinics of Doctors of Medicine,
SIC 807 Medical and Dental Laboratories, and
SIC 809 Miscellaneous Health and Allied Services, Not Elsewhere
Classified.
If the same analysis, using data at the 3-digit level where
available, were applied to those industries in SICs 01 through 51
(industries not historically exempted from OSHA recordkeeping), the
following industries would have lost workday case rates less than 75%
of the private sector average:
SIC 074 Veterinary Services,
SIC 131 Crude Petroleum and Natural Gas,
SIC 211 Cigarettes,
SIC 233 Women's and Misses' Outerwear,
SIC 234 Women's and Children's Undergarments,
SIC 272 Periodicals,
SIC 273 Books,
SIC 274 Miscellaneous Publishing,
SIC 281 Industrial Inorganic Chemicals,
SIC 282 Plastics Materials and Synthetics,
SIC 283 Drugs,
SIC 286 Industrial Organic Chemicals,
SIC 291 Petroleum Refining,
SIC 319 Leather Goods, NEC,
SIC 357 Computer and Office Equipment,
SIC 366 Communications Equipment,
SIC 367 Electronic Components and Accessories,
SIC 376 Guided Missiles, Space Vehicles, Parts,
SIC 381 Search and Navigation Equipment,
SIC 382 Measuring and Controlling Devises,
[[Page 4043]]
SIC 384 Medical Instruments and Supplies,
SIC 385 Ophthalmic Goods,
SIC 386 Photographic Equipment and Supplies,
SIC 387 Watches, Clocks, Watchcases and Parts,
SIC 391 Jewelry, Silverware, and Plated Ware,
SIC 448 Water Transportation of Passengers,
SIC 461 Pipelines, Except Natural Gas,
SIC 472 Passenger Transportation Arrangement,
SIC 481 Telephone Communications,
SIC 483 Radio and Television Broadcasting,
SIC 489 Communications Services, NEC,
SIC 491 Electric Services,
SIC 504 Professional and Commercial Equipment,
SIC 506 Electrical Goods,
SIC 507 Hardware, Plumbing and Heating Equipment,
SIC 513 Apparel, Piece Goods, and Notions, and
SIC 516 Chemicals and Allied Products.
OSHA solicits comment on the appropriateness of its exemption
procedure, expanding it to SICs 01 through 51, or alternative
approaches that would reduce employer paperwork burden while retaining
needed injury and illness information. Specifically OSHA requests
comment on whether to expand the partial exemption to some, all, or
none of these industries as classified by SIC code. Please include any
estimates of costs and benefits associated with these exemptions.
Small Employer Exemption. The proposed text in this NPRM also
modifies the partial exemption for small employers. Employers in the
construction industry with 10 or fewer employees, and non-construction
employers with 19 or fewer employees will now be exempted from all
requirements except the Reporting of Fatality and Multiple
Hospitalization Incidents (proposed Sec. 1904.12) and Duties of
Employers (proposed Sec. 1904.13). The BLS Annual Survey data show that
small employers generally experience much lower patterns of injuries
and illnesses than medium and larger size firms. However, the BLS
Annual Survey also shows that small employers in the construction
industry account for a significant percentage of recordable injuries
and illnesses. In 1991, over 66,000 recordable cases occurred in
construction firms with 11 to 19 employees. These cases accounted for
13% of the total recordable cases in the construction industry. In
contrast, in the manufacturing industry, only 2.4% of the recordable
cases were found in firms with 11 to 19 employees. OSHA believes, given
these numbers and the transient nature of the construction industry,
that employers in the construction industry with 11 or more employees
should be required to keep OSHA injury and illness records.
Discussion. The modification of both the small employer and SIC
partial exemptions is designed to ensure that OSHA's recordkeeping
requirements cover those employers with the highest rates of
occupational injuries and illnesses. These changes shift the
recordkeeping responsibilities from historically low hazard employers
to employers experiencing higher rates of injuries and illnesses. The
net effect of these changes in scope will be the recording of more
injuries and illnesses, but fewer establishments will be covered by the
regulation.
Employers in the proposed partially exempt industries and small
employers will be required to maintain the OSHA Injury and Illness Log
and Summary (proposed Form 300) when they are notified that they have
been selected for the BLS Survey of Occupational Injuries and Illnesses
for a given year. Partially exempt employers may also be required to
provide reports related to occupational safety and health, as required
by the proposed Sec. 1904.13. Additionally, these employers will be
required to comply with reporting requirements for Fatality and
Multiple Hospitalization Incidents (proposed Sec. 1904.12).
OSHA asks for specific input on the following items:
(1) Should the list of partially exempt industries based on SIC
codes remain the same, be eliminated, or be expanded?
(2) How often should the SIC exemption be updated using current
data?
(3) What are other options for addressing the SIC exemption issues?
(4) Should the small employer partial exemption remain the same, be
eliminated, or be expanded?
(5) What would the cost be (time and money) for keeping the records
to employers currently exempt from the recordkeeping requirements but
proposed to be covered? and
(6) What benefits would accrue from the proposed changes (monetize
or quantify where feasible)?
Issue 2. Case recordability criteria--injury/illness severity and
work-relationship. Section 8(c)(2) of the Act, which deals with injury
and illness recordkeeping, mandates the maintenance of accurate records
of ``work-related deaths, illnesses and injuries other than minor
injuries requiring only first aid treatment and which do not involve
medical treatment, loss of consciousness, restriction of work or
motion, or transfer to another job.'' Section 24(a), which deals with
statistics, mandates the collection of statistics on ``work injuries
and illnesses which shall include all disabling, serious or significant
injuries and illnesses, whether or not involving loss of time from
work, other than minor injuries requiring only first aid treatment and
which do not involve medical treatment, loss of consciousness,
restriction of work or motion, or transfer to another job.''
The current recordkeeping system, and the system that is being
proposed, consider conditions work-related if the work environment
either caused or contributed to the conditions or aggravated a pre-
existing condition to the extent that it becomes recordable. This
proposal, however, includes the exemption of certain activities to
avoid recording cases which OSHA believes add no useful information to
the records for surveillance purposes. Appendix A. of this proposal
describes these exemptions. For example, employers will consider a case
non work-related if ``the case results solely from normal body
movements, i.e. walking unencumbered, talking, tying a shoe, sneezing,
or coughing, provided the activity does not involve a job-related
motion and the work environment does not contribute to the injury or
illness.''
The proposed system requires the recording of all injuries and
illnesses with the exclusion of minor injuries and illnesses. OSHA
believes that potentially debilitating illnesses should be recorded as
early in their development as possible, to promote the early
recognition and resolution of problems that could halt the progression
of the illnesses. OSHA believes that the records should capture most
injuries and illnesses, in order to provide an effective surveillance
system for occupational safety and health program development, but
exclude minor injuries and illnesses.
Within the occupational safety and health community, there is a
variety of views concerning the interpretation of these Sections of the
Act and the types of cases the records should capture. The discussion
revolves around two questions: (1) What constitutes work-relationship?
(2) What is the level of injury/illness seriousness that should be used
to determine the proper recording of a case? OSHA has identified the
following three alternative views on both work-relatedness and
seriousness
[[Page 4044]]
that differ from the positions OSHA proposes in this document:
Work-Relatedness
This issue is especially relevant when dealing with conditions
where the specific event or exposure that caused the injury or illness
cannot be easily identified, or the condition is the result of both
work-related and non work-related causes (such as off-the-job
activities, aging, prior medical history or work aggravation of off-
the-job injuries). Common examples include lower back pain, hearing
loss, and asthma.
Alternative 1: Exclude Cases With Any Non-Work Linkage
Those holding this view believe that the work environment should be
the sole, obvious cause of the injury or illness before it is recorded.
They believe that cases should only be considered work-related if there
is concrete evidence that the causal event or exposure occurred while
the employee was engaged in work activities. They believe that if there
is any evidence of non work-related factors, the case should be
excluded.
Alternative 2: Limit to Predominant Workplace Linkage
Those holding this view believe that the work environment should be
a major contributor to the injury or illness for the injury or illness
to be considered work-related. They believe that OSHA's position is too
harsh a test, amounting to zero tolerance for conditions where work is
a minor contributor and non-work factors are the predominant cause of
the injury or illness. Those holding this view believe that OSHA's
current and proposed criteria for work-relationship cause companies to
over-record cases, artificially inflate and overstate workplace
injuries and illnesses, undermine the credibility of the system, and
have led to general resistance to the recordkeeping system. Those
holding this view believe the criteria should be modified so that a
case would be considered work-related only if work activity(s) or
exposure(s) causes or is the predominate contributor to the condition.
Some of those holding this view have proposed an alternative that
would allow a documented determination by a health care provider to
decide work-relationship for the following types of cases: hernias,
cardiovascular disorders, respiratory conditions, hearing loss, skin
disorders or musculoskeletal disorders such as back pain, tendinitis
and carpal tunnel syndrome. For this purpose, a check list has been
suggested, as follows. (note: In the absence of evaluation by a health
care provider, the case would be considered work-related if the work
environment caused, contributed to or aggravated the condition in any
way.)
1. Injury/illness type
______Hernia
______Musculoskeletal disorder
______back pain
______tendinitis
______other________________
______Respiratory condition
______Skin disorder
______Non-occupational disease
2. How was injury/illness discovered
______During occupational medical visit
______Routine physical examination
______Non-occupational medical visit
______Other: ________________
3. Applicable medical history
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
4. Off-the-job activities which may have contributed
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
5. Work relationship evaluation
a. Injury/illness characteristics
______ Degenerative condition due to aging or non-occupational
disease
______ Congenital condition
______ Aggravation of on-the-job injury or illness
b. Possible work contribution
______ Workplace event or exposure? ______ yes ______ no
______ Workplace aggravation? ______ yes ______ no
______ Condition consistent with workplace event or exposure?
______ yes ______ no
______ Condition would have occurred without regard to workplace
duties or exposures? ______ yes ______ no
c. Exposure factors for this type of injury/illness
------------------------------------------------------------------------
On-the-job Comments Off-the-job Comments
------------------------------------------------------------------------
______ High................... ______ High......
______ Medium................. ______ Medium....
______ Low.................... ______ Low.......
______ Not sure............... ______ Not sure..
------------------------------------------------------------------------
6. Work relationship determination
______ Work-related. On-the-job exposure factors more predominant
than off-the-job exposure factors.
______ Not work-related. Off-the-job factors more predominant than
on-the-job exposure factors.
______ Not sure. Assume work-relationship.
Alternative 3: Include Cases With Any Workplace Linkage
Those holding this view believe that injuries and illnesses should
be recorded if the worker ever experienced a workplace event or
exposure that had any possibility of playing a role in the case. For
example, a cancer case, where the worker had at some time in his or her
career worked with a carcinogenic substance, would be considered work-
related, even though there is no positive link between the case and a
workplace exposure.
Seriousness
The concept of seriousness is particularly relevant when dealing
with conditions where the worker is not obviously impaired, but is
experiencing some subjective symptom (pain, dizziness, etc.) or has an
abnormal health test result. For example, a blood test may indicate
that a worker has a relatively high level of cadmium in his or her
system, but the worker is not experiencing any symptoms that adversely
affect either work or lifestyle. The worker has an abnormality, but
should it be considered an injury or illness?
Alternative 1: Days Away From Work or Death
Proponents of this view believe that employers should record only
those cases that result in days away from work or death. They believe
that this will result in the most meaningful and accurate information
(because fatalities and days-away-from-work cases are hard to ``cover
up'' and they are unquestionably serious). They also believe that this
approach will minimize the burden on employers and focus safety and
health efforts on the cases
[[Page 4045]]
with the greatest impact on both employers and workers.
Alternative 2: Days Away From Work, Impairment, or Death
Proponents of this view agree with across-the-board application of
the basic criteria mentioned in Section 8 of the Act, (days away,
medical treatment beyond first aid, etc.) but believe the purpose of
proposed Mandatory Appendix B should be limited to capturing
``serious'' cases which may be ``missed'' because they do not meet the
basic criteria. Such cases would include disorders where no lost time
occurs, or where medical treatment is not provided at the time the case
is diagnosed or discovered because medical treatment would not help,
but the case is serious nonetheless. Examples include the current
criteria for recording hearing loss (25dB), asbestosis, mesothelioma,
silicosis, byssinosis and other similarly serious work-related
diseases.
Potential guiding language for recording cases missed by the basic
criteria would be ``any work-related condition that results in, or is
likely to result in, a physical or mental impairment that substantially
limits a major life activity.'' In addition to stating such guiding
language in, and as a basis for a Mandatory Appendix, clarifying
examples of specific known to be serious conditions such as, but not
limited to, those mentioned in the paragraph above could be listed.
Those who support this approach believe it meets the ``disabling,
serious, or significant'' criteria prescribed in Section 24(a) of the
Act and that these criteria must be considered carefully, especially if
OSHA intends to collect OSHA Logs and use the data for inspection
targeting and intervention purposes. Supporters of this approach also
believe it will provide the most meaningful data to employers for
improving workplace safety and health efforts by helping to allocate
resources for preventing injuries and illnesses which are truly
serious.
Alternative 3: No Limitations on Seriousness
Proponents of this view believe that all work-related injuries and
illnesses should be recorded. They interpret the Act to require the
recording of all work-related illnesses, no matter how minor or how
short lived they may be, and the recording of all non-minor injuries.
They believe the recording criteria should be expanded to include all
signs and symptoms experienced by workers, and perhaps even potentially
hazardous exposure incidents and near misses. They believe that this
alternative provides the employer and the workers at the worksite with
the most effective surveillance tool that will lead to the most
complete injury and illness prevention efforts. Proponents of this view
have provided alternative language for recording cases where ``signs,
symptoms, and/or laboratory abnormalities last longer than 48 hours
(either persistently or intermittently)'' excluding minor injuries
(minor injuries are minor scratches, abrasions, bruises and first
degree burns).''
Implications
The issues of work-relationship and case severity have major
implications for all of the parties that use the injury and illness
records, including employers, workers and the government. If the
criteria are too inclusive, they may appear to overstate the injury and
illness experience, undermine the credibility of the system, and fail
to focus safety and health efforts on the most serious workplace
hazards. If they are too exclusive, they may appear to understate the
injury and illness experience, undermine the credibility of the system,
and fail to reflect hazardous conditions that require attention. OSHA
believes that the OSHA proposal in the NPRM is compatible with the
language and intent of the Act, and provides the best way to resolve
these issues. OSHA welcomes comment, ideas, and alternative suggestions
from the public concerning these issues and the alternatives presented
above.
Specifically, OSHA requests input on A) The level of severity and
criteria for establishing work-relationship and determining which cases
are entered into the records; B) How ``significant/serious/disabling''
should be defined to result in consistent recording practices and data;
C) How work contribution can be objectively measured for such a
purpose; D) Does the checklist shown above meet these objectives? F)
Should work-relationship be established only where work is the
predominant causal factor? G) Should work-relationship be established
if work was something less than the predominant cause? or H) If work
contributed more than 50% to the injury or illness? 25%? 10%? J) How
could any of these percentages be measured/determined?
Issue 3. The definitions of first aid and medical treatment. The
distinction between first aid and medical treatment is a critical
component in determining whether to record a work-related injury or
illness. One criterion in the proposed regulatory text requires any
work-related injury or illness involving medical treatment beyond first
aid to be recorded. A case which involves first aid only (and does not
meet any of the other recording criteria) is not recordable. The intent
of this distinction is to capture information on injuries and illnesses
which are significant and would provide valuable information for safety
and health analysis while excluding minor cases which would not provide
necessary or useful information for analysis.
The current recordkeeping system defines first aid as any one-time
treatment, and any follow-up visit for the purpose of observation, of
minor scratches, cuts, burns, and splinters, and so forth which do not
ordinarily require medical care. Medical treatment is defined to
include any treatment other than first aid treatment administered to
injured employees. The definition focuses on the type of treatment
given and not on the person administering the treatment (e.g.
physician, registered health professional, etc.). These definitions are
further clarified within the Recordkeeping Guidelines for Occupational
Injuries and Illnesses by lists of examples of treatments which are
considered either medical treatment or first aid. These lists are not
comprehensive and confusion exists concerning the classification of
unlisted treatments.
This proposal attempts to clarify the distinction between first aid
and medical treatment by defining the terms in a way that will make
them mutually exclusive. The proposed regulatory text defines first aid
with a finite list of treatments. Medical treatment is defined as any
treatment other than those listed in the first aid definition.
``First aid'' means the following treatments for work-related
injuries and illnesses:
1. Visit(s) to a health care provider limited to observation
2. Diagnostic procedures, including the use of prescription medications
solely for diagnostic purposes
3. Use of nonprescription medications, including antiseptics
4. Simple administration of oxygen
5. Administration of tetanus/diphtheria shot(s) or booster(s)
6. Cleaning, flushing or soaking wounds on skin surface
7. Use of wound coverings such as bandages, gauze pads, etc.
8. Use of any hot/cold therapy (e.g. compresses, soaking, whirlpools
non-prescription skin creams/lotions for local relief, etc.) except for
musculoskeletal disorders (See Mandatory Appendix B)
9. Use of any totally non-rigid, non-immobilizing means of support
(e.g. elastic bandages)
[[Page 4046]]
10. Drilling of a nail to relieve pressure for subungual hematoma
11. Use of eye patches
12. Removal of foreign bodies not embedded in the eye if only
irrigation or removal with a cotton swab is required
13. Removal of splinters or foreign material from areas other than the
eyes by irrigation, tweezers, cotton swabs or other simple means
OSHA asks for comment on the following issues:
(A) Should any treatments on the proposed first aid list be
excluded and should any treatments be added?
(B) Should a list of medical treatments also be provided? Which
treatments?
(C) Should simple administration of oxygen be defined to exclude
more severe procedures such as Intermittent Positive Pressure Breathing
(IPPB)? If so, how?
Issue 4. The definition of restricted work. The Keystone Report
stated that the recording of restricted work is perhaps the least
understood and least accepted concept in the recordkeeping system.
Recording cases involving restricted work activity is important because
injured or ill employees are unable either to perform all of their
normal duties or perform a full day's work. The concept of restricted
work activity was included in the Act due to concern that some
employers might try to conceal significant injuries and illnesses by
temporarily assigning injured or ill workers to other jobs with reduced
requirements. This concern still exists today.
The difficulty in determining restricted work lies in the need to
determine the employee's ``normal duties''. In the past, OSHA has
broadly defined the employee's normal duties to include any work
activity included in the employee's job description, even if the
activity is performed infrequently. According to the Keystone Report,
this definition is problematic because ``(1) few in industry understand
the scope of this interpretation; (2) many who do understand it
disagree with it; and (3) to maximize productivity, workers are
increasingly assigned a wider range of tasks, making it increasingly
difficult to measure and/or verify the performance of these greatly
divergent and infrequent duties.'' (ex. 5, p. 17)
The Keystone Report recommended that restricted work activity
should be recorded if the employee is 1) unable to perform the task he/
she was engaged in at the time of injury or onset of illness or 2)
unable to perform any activity that he/she would have performed during
the week. OSHA believes that the first criterion will focus on the
hazardous tasks that lead to serious injuries and illnesses. OSHA
believes, however, that the second criterion is not easily defined and
could lead to the recording of inconsistent data. This criterion has
been narrowed in the proposed text of the regulation to include
activities the employee performed or was expected to perform on the day
of injury or onset of illness. OSHA believes these activities will be
well known and understood and use of this criterion will lead to
greater consistency in the recording of these more severe work-related
injuries and illnesses.
This proposal also eliminates the requirement for employers to
count the days of restricted work activity. The employer will be
required to place a check in the restricted work column if the case
involved restricted work activity but not days away from work.
OSHA asks for input on whether the proposed language is too
limiting or too broad, on alternative ways to define restricted work
activity and/or the usual duties of an employee, along with suggested
ways to improve employers' understanding and acceptance of the concept
of restricted work activity. OSHA's goal is to have employers
consistently record cases that involve restricted work by providing a
concept which is widely accepted and easy to interpret.
OSHA asks for input on the following questions: (A) Will the
elimination of the restricted work activity day count provide an
incentive for employers to temporarily assign injured or ill workers to
jobs with little or no productive value to avoid recording a case as
one involving days away from work? (B) Will the inclusion of question
13 on the proposed OSHA Form 301, ``If the case involved days away from
work or restricted work activity, enter the date the employee returned
to work at full capacity'', help to reduce such an incentive?
Issue 5. The proper recording of musculoskeletal disorders (MSDs).
Over the last 10 years, there has been an increased awareness of work-
related disorders associated with ergonomic hazards, i.e. hazards
associated with lifting, repeated motion, and repetitive strain and
stress on the musculoskeletal systems of workers. OSHA labels these
injuries and illnesses, which result from ergonomic hazards,
``musculoskeletal disorders'' (MSDs). MSDs do not include broken bones,
chipped teeth, contusions or sprains/strains resulting from falls or
being struck.
Although MSDs have always been recordable, OSHA and BLS had not
published any specific guidance on how to record them until 1986. The
1986 Recordkeeping Guidelines provided some limited specific guidance
by requiring all back cases to be evaluated as injuries using the
general injury criteria, and to record carpal tunnel syndrome as an
illness. The 1986 Guidelines did not provide specific directions on
which criteria to use for recording other types of musculoskeletal
disorders.
Historically, for recording purposes, disorders caused by repeated
or cumulative trauma were covered by the general illness criteria
because these disorders are caused by prolonged exposure to various
risk factors, rather than being caused by a single instantaneous event.
The existing definition of occupational illness (in place since 1971)
is very inclusive: ``Any work related abnormal condition or disorder
(other than an occupational injury)''. (1986 Recordkeeping Guidelines,
P 39) Thus, the current criteria for recording illnesses requires the
employer to record each and every occupational illness, including MSDs.
Theoretically, all musculoskeletal disorders, even the less severe
cases which do not meet the recording criteria for injuries, would be
recordable as a result of applying the general illness recording
criteria. Despite their recordability, OSHA observed that very few, if
any, of these disorders were being recorded on employers' OSHA Logs. As
a result, OSHA developed an enforcement policy limiting the issuance of
citations and penalties for unrecorded MSDs to those cases which
involve:
a clinical diagnosis by a health care provider; or
at least one physical finding, (i.e., an objective symptom
such as redness or swelling); or
* a subjective symptom, such as pain or numbness, coupled with
either medical treatment or lost workdays, (i.e., days away from work
and/or days of restricted work activity).
In 1990, OSHA published specific criteria for the proper recording
of MSDs in the Ergonomics Program Management Guidelines For Meatpacking
Plants (Meatpacking Guideline). These criteria have been the basis for
all of OSHA's interpretations involving the proper recording of
musculoskeletal disorders to the upper extremities (shoulder, arms,
wrist and hands) since that time.
Even though the specific criteria in the Meatpacking Guidelines
defined fewer recordable cases than the general illness criteria, the
number of recorded cases has increased dramatically. While OSHA
believes that these types of
[[Page 4047]]
disorders are increasing in number, OSHA believes that the increase in
recorded MSD cases is also the result of OSHA providing employers with
specific guidance on the subject, in conjunction with enforcement of
the requirements. Compliance with the recordkeeping requirements
improved substantially and the resulting data and statistics have
reflected that improvement.
One purpose of this proposed revision of 29 CFR Part 1904 is to
consolidate in the regulation various criteria, guidelines and
interpretations policies which are currently found in a number of
different documents. Another purpose is to simplify the recordkeeping
requirements, in order to make the system more ``user friendly'' and to
encourage more accurate and consistent recording of injuries and
illnesses. Consistent with these purposes, OSHA is proposing to
incorporate the criteria for recording MSDs found in the Meatpacking
Guidelines in mandatory Appendix B of the proposed regulation, and to
simplify the system by applying those criteria equally to cases
involving the upper extremities, the back and the lower extremities.
The criteria in proposed Mandatory Appendix B require employers to
record new, work-related musculoskeletal disorders: (1) whenever they
are diagnosed by a health care provider, or (2) if the employee has
objective findings (redness indicative of inflammation, deformity,
swelling, etc.). When either of these criteria, or when any of the
general criteria for recording illnesses and injuries in Sec. 1904.4(b)
(i.e. death, loss of consciousness, days away from work, restricted
work activity, job transfer, or medical treatment beyond first aid) is
met, the case is required to be recorded on the OSHA Form 300. OSHA's
proposal represents a continuation of the current recording policy, and
is intended to ensure the early recognition and recording of
musculoskeletal disorders so appropriate actions may be taken.
The current recording of these cases is also dependent on the
definitions of first aid, medical treatment and restricted work.
Because OSHA is proposing to change those definitions, the recording of
musculoskeletal disorders will be affected. OSHA recognizes that hot
and cold treatments for most injury and illness conditions should be
considered first aid treatments, as indicated in the proposed
definition of first aid. However, NIOSH (NIOSH, Cumulative trauma
disorders: A manual for musculoskeletal diseases of the upper limbs,
Taylor and Francis, 1988, p. 125) and other recognized authorities
(Hales & Bertsche, ``Management of Upper Extremity Cumulative Trauma
Disorders'', AAOHN Journal, March, 1992, Vol. 40, No. 3; Nanneman, D.,
``Thermal modalities: Heat and cold: Review of physiological effects
with clinical applications'', AAOHN Journal, 1991, Vol. 39, No. 2)
recognize hot and cold treatments as therapeutic modalities in the
conservative, early treatment of MSDs. Because these treatments may
cause negative effects if not properly administered, OSHA is proposing
that two or more hot and cold treatments be considered medical
treatment for MSDs only when directed by a health care professional.
There is a concern that the proposed criteria will result in a
situation where workers could be working with significant pain for an
extended period of time, without their case being entered into the
records. OSHA has been asked to consider an additional recording
criterion for these cases: record when the employee reports symptoms
(pain, tingling, numbness, etc.) persisting for at least 7 calendar
days from the date of onset. OSHA asks for input on this criterion.
OSHA recognizes that its proposed recording policy does not provide
a mechanism for excluding cases that involve short term job transfers
for minor soreness that commonly occurs to newly hired employees or
employees on rehabilitation assignments during a ``break in'' stage.
OSHA asks for input on whether a method for excluding these cases
should be developed? If so, what method should be used?
Issue 6. The reluctance of some employers to enter cases into the
records. For a variety of reasons, some employers have historically
shown a reluctance to enter injuries and illnesses into the OSHA
records.
Some employers mistakenly believe that recording a case implies
fault on the part of the employer. Some fail to recognize that the
requirements of OSHA recordkeeping have nothing to do with workers'
compensation insurance or any other system outside of the OSHA
requirements. While many OSHA recordable injuries and illnesses may be
compensable under an insurance program, others are not. Furthermore,
many employers use a workers' compensation or insurance form in lieu of
the OSHA supplementary record. However, some employers who use these
forms in lieu of the OSHA supplementary record mistakenly believe that
completing the forms for OSHA recordkeeping purposes automatically
makes the case compensable. While reducing the paperwork burden on
employers, perhaps this equivalency option perpetuates this
misunderstanding and should be eliminated.
Many companies use the information from the OSHA records to
establish ``accountability systems'' for management as well as their
safety and health professionals. Often these systems are linked to
performance evaluations of the affected individuals. These performance
evaluations may be used to help determine bonuses, promotions, or
compensation levels. Affected employees may be discouraged from fully
and accurately recording injuries and illnesses in the OSHA records
when they may be, or may perceive to be, personally penalized for
complying with the OSHA recordkeeping requirements.
The OSHA recordkeeping proposal includes several items intended to
reduce the effects of these potential problems on the accuracy of the
records. Certification of the accuracy and completeness of the OSHA Log
by a responsible company official and disclaimers of a relationship
between OSHA injury and illness recordkeeping and implications of fault
for insurance systems are included in the regulatory text and on the
proposed forms. The ``employer use column'' can be utilized by
companies to indicate those cases that the firm does not wish to
include in their internal safety statistics.
OSHA asks for input on (A) ways to encourage accurate injury and
illness records, (B) how the confusion between OSHA recordkeeping and
workers' compensation/insurance requirements can be minimized, and (C)
how the adverse effect of accountability systems on the OSHA records
can be reduced.
Issue 7. Improving employee involvement. The Keystone report stated
that overall workplace safety and health would benefit if the
information in the injury and illness records were more widely known.
The report noted that employee involvement and awareness are minimal
for three reasons: (1) Lack of knowledge that access is permitted, (2)
fear of employer reprisal, and (3) employee apathy. The Keystone report
concluded that employee notification could improve employee involvement
in recordkeeping and enhance the quality of the data, increase
employees' knowledge of hazards, promote better cooperation between
employers and employees in reducing hazards, and contribute to safer,
more healthful workplaces.
OSHA asks for input on (A) whether employees should be notified
that their individual injuries and illnesses have been entered into the
records, (B) the
[[Page 4048]]
possible mechanisms employers could use to meet such a requirement and
the degree of flexibility employers should be given, (C) any other
ideas on methods for improving employee involvement in the injury and
illness recordkeeping system, and (D) cost (including burden) and
benefit information on each alternative.
Issue 8. Access to the OSHA forms and the privacy of injured or ill
employees. The current regulation and the proposed regulatory text both
require that employees, former employees, and their designated
representatives have access to the entire OSHA injury and illness log,
which includes personal identifiers. Furthermore, the current
regulation does not provide employees or their designated
representatives access to the OSHA injury and illness supplementary
forms while the proposed regulatory text provides employees or
representatives designated by employees access to all OSHA injury and
illness supplementary records (proposed OSHA Form 301, Incident Record)
of the establishment.
OSHA's historical practice of allowing employee access to all of
the information on the log permits employees and their designated
representatives to be totally informed about the employer's
recordkeeping practices, and the occupational injuries and illnesses
recorded in the workplace. However, this total accessibility may
infringe on an individual employee's privacy interest. At the same
time, the need to access individuals' Incident Records to adequately
evaluate the safety and health environment of the establishment has
been expressed.
These two interests--the privacy interests of the individual
employee versus the interest in access to health and safety information
concerning one's own workplace--are potentially at odds with one
another. For injury and illness recordkeeping purposes, OSHA has taken
the position that an employee's interest in access to health and safety
information on the OSHA forms concerning one's own workplace carries
greater weight than an individual's right to privacy. More complete
access to the detailed injury and illness records has the potential for
increasing employee involvement in workplace safety and health programs
and therefore has the potential for improving working conditions.
Analysis of injury and illness data provides a wealth of information
for injury and illness prevention programs. Analyses by workers, in
addition to analyses by the employer, lead to the potential of
developing methods to diminish workplace hazards through additional or
different perspectives.
OSHA is considering alternatives to the existing and proposed
regulatory text to address the conflict between the privacy interests
of the individual and the interest in total access to health and safety
information concerning one's own workplace. One alternative to the
regulatory text would be to require the removal of personal identifiers
for only certain types of cases that might have higher privacy concerns
than others.
The alternative described above raises additional questions to
which the public is invited to respond. What other pieces of
information, if any, on the currently proposed forms (proposed Forms
300 and 301--see section IV of this preamble) ought to be considered
personal identifiers and included on the side of the form which is not
disclosed once it is folded over? If only certain types of cases should
be shielded, which types of cases ought to be considered
``confidential'' and subject to having the personal identifiers
removed? Should a coding system be used for these cases to enable some
people, but not others, to have access to the entry information, and if
so, what type of system? Who should have access to the personal
identifier information? Should the right to access an individual's
Incident Record be limited to that individual?
It is OSHA's intention to make the forms readily accessible to
employees and employee representatives who can use the information to
affect safety and health conditions at the workplace. OSHA does not
intend to provide access to the general public. OSHA asks for input on
possible methodologies for providing easy access to workers while
restricting access to the general public. OSHA also asks for input on
the possible benefits and costs of making the information accessible,
and any negative results that could occur from such access.
Specifically, for employers who use State workers compensation,
insurance, or other forms as equivalents to the OSHA form, are there
data elements contained on those forms which could not be released to
employees or their designated representatives? If so, what are those
data elements? How would this affect the employer's ability to use
equivalent forms?
OSHA invites the public to suggest other options or alternative
regulatory language which would address this issue of confidentiality
and access to information. Please include any information on costs and
benefits that will result from these alternatives, including any ideas
on how to quantify those costs and benefits.
Issue 9. The development of computer software to assist employers
in the task of recordkeeping. To make injury and illness recordkeeping
easier for employers, OSHA is considering the development of
recordkeeping computer software. Once developed, the program could have
the following minimum features:
(a) employ a decision-making logic for determining if an injury or
illness is recordable, and if so the proper classification, and include
questions to elicit the necessary information to complete and generate
the OSHA required records;
(b) automatic form(s) generation;
(c) the ability to assist the employer in evaluating the entered
data through several preset analytical tools (e.g. tables, charts,
etc.);
(d) contain a tutorial section to assist employers in training
employees in proper recordkeeping procedures;
(e) be in the public domain and/or be available at cost to the
public.
OSHA is requesting comments on all facets of this approach toward
development of software. In addition, OSHA would like to know what
percentage of employers have computers to assist them in their
business? What percentage of employers currently use computers for
tracking employee-related information (payroll, timekeeping, etc.)?
Should the distribution be through the Government, public domain
shareware distribution, or other channels? Should OSHA develop the
software or only provide specifications of its requirements?
IV. Proposed OSHA Forms
In conjunction with this proposed rulemaking, the OSHA
recordkeeping forms are also being modified. OSHA is continuing to try
to reduce the employer's paperwork burden through these modifications
and reducing the number of duplicate questions on the forms. At this
point, some duplicate questions remain and are needed for each form to
``stand alone''. OSHA believes if the duplication were reduced further,
employers would be required to refer frequently to both forms at the
same time, which would add additional burden. OSHA requests comment on
any of these modifications, the remaining duplications, or any other
related issues to the proposed forms.
The forms are being included in this preamble for informational
purposes.
The OSHA 200 Log will be replaced with the OSHA 300 Log which
includes reformatted columns and an additional column for the
employer's use. The
[[Page 4049]]
proposed elimination of the requirement that employers distinguish
between injuries and illnesses in order to record a case would
eliminate the need for separate groups of columns for injuries and
illnesses on the Log. The proposed elimination of the requirement to
count days of restricted work activity also eliminates the need for the
restricted day count columns found on the OSHA 200 Log. The result is a
simplified form that fits on standard size paper which can easily be
copied and kept on a personal computer. This also results in space to
create an employer use column which can be utilized by employers to
tailor the Log to meet the needs of their particular safety and health
program. For example, this column could be used by employers to enter
causation, or injury and illness codes, or other information useful to
the company. This employer use column may provide employers with
additional flexibility, reducing their need to maintain multiple sets
of records for various purposes.
Cases that end in permanent work restrictions, job transfer, or
termination of employment will be noted by placing an asterisk next to
the employee's name. This information could provide employers,
employees, inspectors and researchers with another measure of severity
for injuries and illnesses. A statement will be included on the summary
portion informing employees, former employees, and their designated
representatives of their right to access the entire Log.
A disclaimer will be included on the Log which states ``Cases
listed below are not necessarily eligible for Workers' Compensation or
other insurance. Listing a case below does not necessarily mean that
the employer or worker was at fault or that an OSHA standard was
violated''. The intent of this disclaimer is to dispel the mistaken
belief that recording a case on the Log affects workers' compensation
or establishes a finding of fault.
Some stakeholders have expressed the need for a column containing
information on cases involving musculoskeletal disorders such as low
back pain, tendinitis, and carpal tunnel syndrome. OSHA solicits
comment on the inclusion of an MSD column on the form.
The Supplementary Record of Occupational Injuries and Illnesses
(OSHA No.101) will be replaced with the OSHA Injury and Illness
Incident Record (OSHA Form 301) in order to collect more useful
information. Additional questions will be added to gather data on the
events leading up to the injury or illness; on the equipment, material,
or substance involved; and on the activity taking place when the injury
or illness occurred. An employer use section will be added to provide
the employer with space to record any additional information that is
desired. A statement will be included on the form notifying employees,
former employees, and their designated representatives of their right
to access all OSHA injury and illness records of the establishment.
While the new OSHA 300 Log presents information on injuries and
illnesses in a condensed format, an Incident Record provides more
detailed information about the affected worker, the injury or illness,
workplace factors associated with the accident, and a brief description
of how the injury or illness occurred.
Currently, many employers use their insurance or State workers'
compensation forms in place of the supplementary record. This reduces
the burden on employers by allowing them to fill out a single form for
multiple purposes. Several States have notified OSHA that they intend
to modify their forms to qualify as equivalents to the OSHA form. OSHA
anticipates that many other States will also modify their forms to
qualify as equivalents to the OSHA form so employers may continue to
have the benefit of interchangeable forms. OSHA is currently working
with the International Association of Industrial Accident Boards and
Commissions (IAIABC) to standardize the recording forms for
occupational injuries and illnesses.
OSHA also requests comment on the concept of a single form which
would meet all of the informational needs of the recordkeeping system.
What items would be included? What format would be used? How would the
use of a single form, as opposed to two forms, affect the employers
ability to use State Workers Compensation forms as equivalents to the
OSHA form?
Information concerning the establishment name and address and the
employee's social security number, regular job title, and the
department in which the injured person is regularly employed will no
longer be requested.
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V. Legal Authority
The primary purpose of the Occupational Safety and Health Act (the
Act), 29 U.S.C. 651 et seq., is to assure so far as possible, safe and
healthful working conditions for every American worker over the period
of his or her working lifetime. The Secretary's responsibilities under
the Act are defined largely by its enumerated purposes, which include:
Encouraging employers and employees in their efforts to reduce the
number of occupational safety and health hazards at their places of
employment, and to stimulate employers and employees to institute new
and to perfect existing programs for providing safe and healthful
working conditions. [29 U.S.C. 651(b)(1)]
Building upon advances already made through employer and employee
initiative for providing safe and healthful working conditions. [29
U.S.C. 651(b)(4)]
Providing for research in the field of occupational safety and
health * * * developing innovative methods, techniques, and approaches
for dealing with occupational safety and health problems. [29 U.S.C.
651(b)(5)]
Exploring ways to discover latent diseases, establishing causal
connections between diseases and work in environmental conditions, and
conducting other research relating to health problems * * * [29 U.S.C.
651(b)6)]
Providing medical criteria which will assure insofar as practicable
that no employee will suffer diminished health, functional capacity, or
life expectancy as a result of his [or her] work experience. [29 U.S.C.
651(b)(7)]
Providing for appropriate reporting procedures with respect to
occupational safety and health which will help achieve the objectives
of this Act and accurately describe the nature of the occupational
safety and health problems. [29 U.S.C. 651(b)(12)]
Encouraging joint labor-management efforts to reduce injuries and
disease arising out of employment. [29 U.S.C. 651(b)(13)]
Several sections of the Act provide legal authority for
promulgation and enforcement of this regulation. A summary of relevant
sections is provided below:
Section 8(c)(1) of the Act, requires each employer to ``make, keep
and preserve, and make available to the Secretary [of Labor] or the
Secretary of Health and Human Services, such records regarding his
activities relating to this Act as the Secretary, in cooperation with
the Secretary of Health and Human Services, may prescribe by regulation
as necessary or appropriate for the enforcement of this Act or for
developing information regarding the causes and prevention of
occupational accidents and illnesses.'' Section 8(c)(2) further
provides that the ``Secretary, in cooperation with the Secretary of
Health and Human Services, shall prescribe regulations requiring
employers to maintain accurate records of, and to make periodic reports
on, work-related deaths, injuries and illnesses other than minor
injuries requiring only first aid treatment and which do not involve
medical treatment, loss of consciousness, restriction of work or
motion, or transfer to another job.'' Section 8(c)(3) empowers the
Secretary to require employers to make, keep, and preserve records
regarding activities related to the Act. In particular, section 8(c)(3)
gives the Secretary authority to require employers to ``maintain
accurate records of employee exposures to potentially toxic materials
or harmful physical agents which are required to be monitored or
measured under Section 6.'' [29 U.S.C. 657(c)]
Section 8(g)(1) authorizes the Secretary ``to compile, analyze, and
publish, either in summary or detailed form, all reports or information
obtained under this section.'' Section 8(g)(2) of the Act empowers the
Secretary ``to prescribe such rules and regulations as he may deem
necessary to carry out his responsibilities under the Act.'' [29 U.S.C.
657(g)]
Section 9 empowers the Secretary to issue a citation to an employer
who the Secretary believes ``has violated a requirement * * * of any
regulations prescribed pursuant to this Act'' and may, pursuant to
Section 10, assess a penalty under Section 17. [29 U.S.C. 658 and 659]
Section 20 empowers the Secretary of Labor and the Secretary of
Health and Human Services to consult on research and related
activities, ``including studies of psychological factors involved, and
relating to innovative methods, techniques, and approaches for dealing
with occupational safety and health problems.'' The Secretary of HHS,
on the basis of such research, ``* * * and other information available
to him, shall develop criteria dealing with toxic materials and harmful
physical agents and substances which will describe exposure levels that
are safe for various periods of employment, including but not limited
to the exposure levels at which no employee will suffer impaired health
or functional capacities or diminished life expectancy as a result of
his work experience.'' Also, the Secretary of HHS shall conduct
research ``to explore new problems, including those created by new
technology in occupational safety and health, which may require
ameliorative action beyond that which is otherwise provided for in the
operating provisions of this Act.'' Section 20 empowers the Secretary
of Labor to disseminate information obtained by the Secretaries of
Labor and HHS under this section to employers, employees, and
organizations thereof. [29 U.S.C. 669]
Section 24 requires the Secretary to ``develop and maintain an
effective program of collection, compilation, and analysis of
occupational safety and health statistics * * * The Secretary shall
compile accurate statistics on work injuries and illnesses which shall
include all disabling, serious, or significant injuries and illnesses,
whether or not involving loss of time from work, other than minor
injuries requiring only first aid treatment and which do not involve
medical treatment, loss of consciousness, restriction of work or
motion, or transfer to another job.'' Section 24 also empowers the
Secretary to ``promote, encourage, or directly engage in programs of
studies, information and communication concerning occupational safety
and health statistics.'' Finally, Section 24 requires employers to
``file such reports with the Secretary as he shall prescribe by
regulation, as necessary to carry out his functions under this
chapter.'' [29 U.S.C. 673]
VI. State Plans
The 25 States and territories with their own OSHA approved
occupational safety and health plans must adopt a comparable rule.
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 current 29 CFR 1952.4 requires that such States with
approved State plans under section 18 of the OSH Act (29 U.S.C. 667),
must adopt recordkeeping and reporting regulations which are
``substantially identical'' to those set forth in 29 CFR Part 1904.
Therefore, the definitions used must be identical to ensure the
uniformity of collected information. In addition, Sec. 1952.4 provides
that employer variances or exceptions to State recordkeeping or
reporting requirements in a State plan State must be approved by the
Bureau
[[Page 4055]]
of Labor Statistics. Similarly, a State is permitted to require
supplemental reporting or recordkeeping data, but that State must
obtain approval from the Bureau of Labor Statistics to insure that the
additional data will not interfere with ``the primary uniform reporting
objectives.'' The proposed revision of 29 CFR 1952.4 keeps the same
substantive requirements for the State Plan States, but reflects the
organizational shift of some responsibilities of the Bureau of Labor
Statistics to OSHA. See also the memorandum of understanding between
OSHA and BLS effective January 1, 1991 (ex. 6).
VII. Regulatory Impact Assessment
The average establishment affected by the proposed changes to the
recordkeeping requirements would incur a net reduction in recordkeeping
costs. Thus the proposed rule will not impose adverse economic impacts
on firms in the regulated community. The proposed exemption from the
regulation of all non-construction establishments with fewer than 20
employees will mean that most small entities will experience an even
larger cost savings. Nor is any significant international effect
expected.
VIII. Regulatory Flexibility Certification
Pursuant to the Regulatory Flexibility Act (5 U.S.C. 601 et seq.),
the Assistant Secretary certifies that the proposed rule will not have
a significant adverse impact on a substantial number of small entities.
The proposed rule exempts construction employers with less than eleven
employees and non-construction employers with less than twenty
employees from most of the requirements, and would not have a
differential impact on small businesses.
IX. Environmental Impact Assessment
In accordance with the requirements of the National Environmental
Policy Act (NEPA) (42 U.S.C. 4321 et seq.), Council on Environmental
Quality NEPA regulations (40 CFR Part 1500 et seq.), and the Department
of Labor's NEPA regulations (29 CFR Part 11), the Assistant Secretary
has determined that this proposed rule will not have a significant
impact on the external environment.
X. Federalism
This proposed rule has been reviewed in accordance with Executive
Order 12612 (52 FR 41685), regarding Federalism. Because this
rulemaking action involves a ``regulation'' issued under section 8 of
the OSH Act, and not a ``standard'' issued under section 6 of the Act,
the rule does not preempt State law, see 29 U.S.C. Sec. 667 (a). The
effect of the proposed rule on States is discussed above in Section VI,
State Plans.
XI. Public Participation
Interested persons are requested to submit written comments on the
issues raised in this proposal. Responses to the questions raised in
the proposal are also encouraged. Whenever possible, solutions should
be included where the comments are of a critical nature. Written
submissions must clearly identify the provisions of the proposal which
are addressed and the position taken on each issue.
These comments must be postmarked by May 2, 1996. Comments are to
be submitted in writing in quadruplicate, or 1 original (hard copy) and
1 disk(5 \1/4\ or 3 \1/2\) in WP 5.0, 5.1, 5.2, 6.0 or ascii. Note: Any
information not contained on disk; e.g., studies, articles, etc. must
be submitted in quadruplicate. Comments of 10 pages or less may be
transmitted by facsimile to (202) 219-5046 provided the original and 4
copies of the comment are sent to the Docket Officer thereafter. All
comments shall be submitted to: Docket Officer, Docket No. R-02,
Occupational Safety and Health Administration, Room N-2625, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210, telephone (202) 219-7894.
All written comments received within the specified comment period
will be made a part of the record and will be available for inspection
and copying at the above Docket Office address.
A public meeting will be held in Washington, D.C. in the U.S.
Department of Labor auditorium at 200 Constitution Avenue, N.W.
beginning at 8:30 AM on March 26, 1996 and extending through March
28th, if necessary. The purpose of the meeting is to give the public an
opportunity to provide information to OSHA concerning the proposed
rule. Notices of intention to appear at the public meeting should
identify person and organization, the amount of time requested for
presenting views, the subject matter, and a brief summary of the
intended presentation. The amount of time available for each presenter
may be limited by OSHA, if necessary. Notices to appear must be
postmarked on or before March 5, 1996. Notice of intention to appear at
the meeting is to be sent to Mr. Tom Hall, OSHA Division of Consumer
Affairs, Docket No. R-02, Room N-3647, U.S. Department of Labor, 200
Constitution Avenue, N.W., Washington, D.C., 20210.
XII. Paperwork Reduction Act of 1995
The proposed regulation contains information collections which are
subject to review by the Office of Management and Budget (OMB) under
the Paperwork Reduction Act of 1995. The title, summary, description of
need, respondent description and estimated reporting and recordkeeping
burden are shown below. Included in the estimate of burden is the time
and effort for reviewing instructions, searching existing data sources,
gathering and maintaining the data needed, completing and reviewing the
collection of information, and financial resources expended for
developing, acquiring, installing, and utilizing technology and systems
to meet the information collection requirements.
Title: Recording and Reporting Occupational Injuries and Illnesses.
Summary: OSHA is revising 29 CFR 1904 and the associated Forms
(OSHA No. 200 and OSHA No. 101), and in addition to providing numerous
clarifications and minor modifications, this revision makes several
major changes as follows:
------------------------------------------------------------------------
Concept Change/requirement
------------------------------------------------------------------------
Exemptions................... Expand the Small Employer exemption and
modify the Low Hazard Industry (SIC)
exemption.
Injury and Illness Records Require site controlling employers in the
for construction construction industry to maintain
subcontractors. additional records on workers other then
their own employees.
Computerization.............. Allow employers to maintain their OSHA
injury and illness records on computer
file without corresponding hard copies.
Injury vs Illness............ Eliminate the employer responsibility to
distinguish between injuries and
illnesses.
Recordable condition......... Redefine the criteria outlining what is a
recordable occupational injury or
illness.
Forms........................ The forms will be requesting modified
information and will be renumbered as
the OSHA Form 300 (OSHA Injury and
Illness Log and Summary) and the OSHA
Form 301 (OSHA Injury and Illness
Incident Record).
------------------------------------------------------------------------
[[Page 4056]]
Description of need: The OSHA Form 300, Log and Summary; the OSHA
Form 301, Incident Record; and the recordkeeping regulations will
provide employers with the means and specific instructions needed to
maintain records of work-related injuries and illnesses.
Accurate records are necessary for the optimal prioritization of
OSHA's scarce resources. For example, inspection priorities are largely
based on estimates of occupational injury and illness data collected
from employers. The data also play an important part in the
administrative procedures mandated by the Supreme Court that allow OSHA
to obtain search warrants to conduct safety and health inspections.
Others using the data include State and local government agencies,
academia, employers, trade associations, labor, and the general public.
Efforts to the fulfill the Congressional mandate that the Federal
government protect employees from safety and health dangers on the job
would be severely hampered by incomplete, inconsistent, and inaccurate
data. The revision of the recordkeeping requirements is an attempt to
improve the accuracy, completeness and consistency of these records,
while reducing the paperwork burden to the regulated community.
Respondent description: Approximately 620,000 private sector
employer establishments will be required to maintain the OSHA Injury
and Illness Log and Summary and Incident Records, though a small number
of them will not have a recordable case in any given year and will only
have to post the summary part of the OSHA Form 300.
Estimated Burden:
Employers' Burden for the Proposed Revised Requirements
----------------------------------------------------------------------------------------------------------------
Total
Actions Number of cases Unit hours per case burden
hours
----------------------------------------------------------------------------------------------------------------
Complete OSHA 301 (Includes 508,895 Forms........................... .28 (17 min/60 min)....... 142,490
research of instructions and
case details to complete the
form).
Complete OSHA 300 (Includes 5,088,948 Line entries.................. .166 (10 min/60 min)...... 844,765
research of instructions and
case details to complete the
form).
Injury and illness records 74,822 Line entries..................... .166 (10 min/60 min)...... 12,420
for construction subcontract
workers.
Fixed burden (Set-up, 620,879 Establishments.................. .30 (18 min/60 min)....... 186,264
Summary, and Posting of OSHA
300).
Learning System--Turnover.... 124,176 Establishments.................. .42 (25 min/60 min)....... 52,153
Disclosure burden *.......... 444,222 employee requests............... .016 (1 min/60 min)....... 7,107
40,000 Inspections...................... .033 (2 min/60 min)....... 1,320
------------
Total Annual Burden ........................................ .......................... 1,246,519
Hours.
------------
Learning New System 458,518 Establishments.................. .25 (15 min/60 min)....... 114,629
Implementation year only.
162,361 Establishments.................. .42 (25 min/60 min)....... 68,192
------------
Total Burden Hours for ........................................ .......................... 1,429,340
Implementation Year
Only.
----------------------------------------------------------------------------------------------------------------
*Based on estimates of OSHA compliance inspections conducted during 1993.
This is an annual decrease in burden of 246,191 hours from the
estimate of the current injury and illness recordkeeping requirements,
after a smaller decrease of 63,370 hours in the initial year of
implementation due to time required to learn the new system. The
decrease in hours is primarily due to the simplification of definitions
and the reduction of information required on the OSHA Log and
supplementary forms.
The agency has submitted a copy of the proposed rule to OMB in
accordance with 44 U.S.C. Sec. 3507(d) of the Paperwork Reduction Act
for its review of these information collections. Interested persons are
invited to send comments regarding this burden estimate or any other
aspect of this collection of information, including (1) an evaluation
of whether the proposed collection of information ensures that the
collection of information is necessary for the proper performance of
the functions of the agency, including whether the information will
have practical utility; (2) an evaluation of the accuracy of the
agency's estimate of burden of the proposed collection of information,
including the validity of the methodology and assumptions used; (3)
ways to enhance the quality, utility, and clarity of the information to
be collected; and (4) how to minimize the burden of the collection of
information, including through the use of appropriate automated,
electronic, mechanical or other technological collection techniques or
other forms of information technology, e.g. permitting electronic
submission of responses. In addition, OSHA requests comment on the
nature and extent of any cost burdens, (i.e., monetary costs) that
employers would incur due to changes in paperwork requirements that
would be necessitated by this proposal. Comments should be sent to OSHA
Office of Statistics, 200 Constitution Avenue, N.W., Washington, DC
20210 and to the Office of Information and Regulatory Affairs, OMB,
Room 10235, New Executive Office Building, Washington, DC 20503, Attn.
Desk Officer for OSHA. Comments on the issues covered by the Paperwork
Reduction Act are most useful to OMB if received within 30 days of
publication of the Notice of Proposed Rulemaking, and no later than
within 60 days of publication.
List of Subjects
29 CFR Part 1904
Recording and reporting of occupational injuries and illnesses,
statistical surveys of occupational injuries and illnesses,
occupational safety and health, State plans.
29 CFR Part 1952
Recording and reporting of occupational injuries and illnesses,
variances to State recording and reporting requirements, injury and
illness statistics, State plans.
XIII. Authority
This document was prepared under the direction of Joseph A. Dear,
Assistant Secretary of Labor for Occupational Safety and Health, U.S.
Department of Labor, 200 Constitution Avenue, NW., Washington, DC
20210.
Accordingly, pursuant to sections 8(c), 8(g), 20 and 24 of the
Occupational Safety and Health Act of 1970 (29 U.S.C. 657, 673),
Secretary of Labor's Order No. 1-90 (55 FR 9033), and 5 U.S.C. 553, it
[[Page 4057]]
is proposed to revise 29 CFR Part 1904 and to amend part 1952 as set
forth below.
Signed in Washington, DC., this 26 day of January, 1996.
Joseph A. Dear,
Assistant Secretary of Labor.
PART 1904--[AMENDED]
1. 29 CFR Part 1904 would be revised to read as follows:
PART 1904--RECORDING AND REPORTING OCCUPATIONAL INJURIES AND
ILLNESSES
Sec.
1904.1 Purpose.
1904.2 Coverage and exemptions.
1904.3 Definitions.
1904.4 OSHA Injury and Illness Log and Summary (OSHA Form 300 or
Equivalent).
1904.5 OSHA Injury and Illness Incident Record (OSHA Form 301 or
Equivalent).
1904.6 Preparation, certification and posting of the year-end
summary.
1904.7 Location of records.
1904.8 Period covered.
1904.9 Retention and updating of occupational injury and illness
records.
1904.10 Change of ownership.
1904.11 Access to records.
1904.12 Reporting of fatality or multiple hospitalization
incidents.
1904.13 Reports by employers.
1904.14 Recordkeeping under approved State plans.
1904.15 Petitions for recordkeeping exceptions.
1904.16 Falsification of, or failure to keep records or provide
reports.
1904.17 Subcontractor records for major construction projects.
Appendix A to Part 1904--Work-Relatedness.
Appendix B to Part 1904--Recording of Specific Conditions.
Appendix C to Part 1904--Decision Tree for Recording Occupational
Injuries and Illnesses.
Authority: 29 U.S.C. 657, 658, 660, 666, 669, 673, Secretary of
Labor's Order No. 1-90 (55 FR 9033), and 5 U.S.C. 553.
Sec. 1904.1 Purpose.
(a) The purpose of this Part is to require employers to record and
report work-related injuries, illnesses and fatalities. The records:
assist employers and employees in their efforts to discover, evaluate
and address workplace hazards; assist occupational safety and health
officials in carrying out enforcement and consultation programs; aid in
the development and evaluation of safety and health standards; are used
to develop information and conduct research regarding the causes and
prevention of occupational injuries and illnesses; and accurately
describe the nature of occupational safety and health problems for the
Nation, State or establishment.
(b) The records required in this Part provide descriptive
information concerning the incidence of occupational injuries and
illnesses, regardless of fault or preventability. Recording an injury
or illness does not necessarily mean that the employer or employee was
at fault, that an OSHA standard was violated, or that the employee is
eligible for workers' compensation or other insurance benefits.
Recordable workplace injuries and illnesses result from a variety of
workplace events or exposures, including but not limited to: accidents,
exposure to toxic materials or harmful physical agents, intentional
acts of violence, or naturally occurring events such as a tornado or
earthquake.
(c) The regulations in this Part were promulgated in consultation
with the Secretary of Health and Human Services.
Sec. 1904.2 Coverage and exemptions.
Coverage and exemptions are summarized below and specified in the
following table. See table to determine coverage and exemptions.
(a) Coverage. (1) All employers covered by the Act, regardless of
size or Standard Industrial Classification (SIC), are required to:
(i) Comply with the reporting requirements of Sec. 1904.12 of this
Part, concerning fatalities or multiple hospitalizations; and
(ii) Upon being notified in writing by an authorized government
agency, maintain an OSHA Injury and Illness Log and Summary and make
reports under Sec. 1904.13 of this Part.
(2) Additionally, employers in specific industries listed in
columns A and B on the following table are required to comply with
other regulations in this Part 1904, except as provided in paragraph
(b) of this section.
(b) Exemptions. Exemptions from coverage are based upon size and
the Standard Industrial Classification (SIC) of the employer:
(1) Size. (i) Construction employers with 10 or fewer employees for
the entire previous calendar year are exempt from the regulations of
this Part 1904, except as noted in paragraph (a)(1) of this section.
See column D of the Coverage and Exemption Table in paragraph (b)(2) of
this section.
(ii) Employers in industries other than construction with 19 or
fewer employees for the entire previous calendar year are exempt from
the regulations of this Part 1904, except as noted in paragraph (a)(1)
of this section. See column D of the Coverage and Exemption Table in
paragraph (b)(2) of this section.
(2) Standard Industrial Classification (SIC) code. Within the
covered industries (column B), certain specific industries (at the 3-
digit SIC level) are exempt from the regulations of this Part 1904,
except as noted in paragraph (a)(1) of this section. See column C for
the list of exempt SICs.
Note to paragraph (b)(2): Standard Industrial Classification
(SIC) shall be determined using the Standard Industrial
Classification Manual, Executive Office of the President, Office of
Management and Budget. All size thresholds or exemptions are based
on the number of employees of the entire firm or corporation, not
the number of employees in an individual establishment.
Coverage and Exemption Table
Note 1 to Coverage and Exemption Table: All employers covered by
the OSH Act, regardless of size or SIC code are required to comply
with Secs. 1904.12 and 1904.13. The following table refers to
coverage and exemptions to the other requirements of Part 1904.
----------------------------------------------------------------------------------------------------------------
Covered employers Exemptions to employers listed in column B
----------------------------------------------------------------------------------------------------------------
(A) Industry division (B) Specific industry (C) By SIC (D) By size
----------------------------------------------------------------------------------------------------------------
Construction.................. All Industries (SIC 15-17)...... ...................... 10 or fewer employees
for the entire
previous calendar
year.
Mining........................ All Industries not covered by ...................... 19 or fewer employees
MSHA. for the entire
previous calendar
year.
Agriculture................... All Industries (SIC 01-09)
Manufacturing................. All Industries (SIC 20-39)
Transportation & Utilities.... All Industries (SIC 40-49)
Wholesale..................... All Industries (SIC 50-51)
[[Page 4058]]
Retail........................ SIC 52 Building Materials, SIC 525 Hardware
Hardware Garden Supply and Stores.
Mobile Home Dealers,.
SIC 53 General Merchandise
Stores,
SIC 54 Food Stores,
SIC 553 Auto and Home Supply
Stores,
SIC 555 Boat Dealers,
SIC 571 Home Furniture and
Furnishings Stores,
SIC 58 Eating and Drinking
Places,
SIC 596 Nonstore Retailers,
SIC 598 Fuel Dealers.
Finance, Insurance & Real SIC 651 Real Estate Operators
Estate. and Lessors and SIC 655 Land
Subdividers and Developers.
Services...................... SIC 70 Hotels, Rooming Houses, SIC 752 Automobile
Camps and Other Lodging Places;. Parking;
SIC 721 Laundry, Cleaning, and SIC 764 Reupholstery
Garment Services;. and Furniture Repair;
SIC 734 Services to Dwellings SIC 793 Bowling
and Other Buildings;. Centers;
SIC 735 Miscellaneous Equipment SIC 801 Offices and
Rental and Leasing;. Clinics of Doctors of
Medicine;
SIC 736 Personnel Supply SIC 807 Medical and
Services;. Dental Laboratories;
and
SIC 75 Automotive Repair, SIC 809 Miscellaneous
Services, and Parking;. Health and Allied
Services, Not
Elsewhere Classified.
SIC 76 Miscellaneous Repair
Services;
SIC 79 Amusement and Recreation
Services;
SIC 80 Health Services;
SIC 833 Job Training and
Vocational Rehabilitation
Services;
SIC 836 Residential Care;
SIC 842 Arboreta and Botanical
or Zoological Gardens; and
SIC 869 Membership Organizations
Not Elsewhere Classified.
----------------------------------------------------------------------------------------------------------------
Note 2 to Coverage and Exemption Table: Some States with their own occupational safety and health programs do
not recognize the Federal recordkeeping exemptions. Contact your nearest OSHA office or State agency to find
out if State requirements differ.
Note 3 to Coverage and Exemption Table: SICs are from the Standard Industrial Classification Manual, 1987: U.S.
Office of Management and Budget. Contact your nearest OSHA office or State agency for help in determining your
SIC.
Note 4 to Coverage and Exemption Table: The size exemption is based on the employment of the entire firm, not of
an individual establishment. Employees include part-time workers and corporate officers.
Note 5 to Coverage and Exemption Table: Employers normally exempt from the recordkeeping requirements must still
comply with the following:
(1) Report any occupational fatality or event resulting in the hospitalization of 3 or more employees as
required by Section 1904.12; and
(2) Maintain an OSHA Injury and Illness log and Summary and submit reports if directed in writing to do so by an
authorized government agency as required by Section 1904.13.
Note 6 to Coverage and Exemption Table: Example of how to read the Coverage and Exemption Table: Employers in
SIC 52 (Building Materials, Hardware Garden Supply and Mobile Home Dealers) are covered by the regulation
except for employers with 19 or fewer employees in the previous calendar year and Hardware Stores (SIC 525) of
any size.
Sec. 1904.3 Definitions.
The following definitions apply to employer recording and reporting
of occupational fatalities, injuries and illnesses.
Act means the Occupational Safety and Health Act of 1970 (84 Stat.
1590 et seq., 29 U.S. 651 et seq.). The definitions contained in
section (3) of the Act and related interpretations shall be applicable
to such terms when used in this Part 1904.
Days away from work means the number of days the employee would
have worked but could not because of an occupational injury or illness.
Days away from work do not include the day the employee was injured or
became ill and days on which the employee would not have worked even
though able to work (e.g. weekends, holidays, pre-scheduled vacation
days, etc.). The count of days away from work ceases with the
termination of employment if the termination is completely unrelated to
the employee's injury or illness. If the termination is related to the
employee's injury or illness, the employer must enter an estimate of
the number of days that would have been missed had the employee not
been terminated. For extended cases that result in 180 or more days
away from work, an entry of ``180'' or ``180+'' in the days away from
work column shall be considered an accurate count.
Employee as defined in section 3 of the Act, means an employee of
an employer who is employed in a business of his or her employer which
affects commerce.
Note to definition of ``Employee'': There are a variety of
circumstances which result in an employee/employer relationship for
OSHA recordkeeping purposes. The following is meant to be
illustrative only, and not meant to be an exhaustive list. Employees
include corporate officers as well as full- time, part-time,
temporary and limited service workers who receive any form of
compensation for their services. Employees include persons who may
be labeled ``independent contractors'', or migrant workers, and
persons who are provided by a temporary help service or personnel
leasing agent when they are supervised on a day-to-
[[Page 4059]]
day basis by the employer utilizing their services. Day-to-day
supervision occurs when, in addition to specifying the output,
product or result to be accomplished by the person's work, the
employer supervises the details, means, methods and processes by
which the work is to be accomplished. Employees do not include sole
proprietors, partners, family members of farm employers or domestic
household workers when employed in the home (baby sitters,
housekeepers, gardeners, etc.).
Establishment means:
(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.
First aid means the following treatments for work-related injuries
and illnesses. This list is a comprehensive list of all treatments
considered first aid for recordkeeping purposes. These treatments are
considered ``first aid'', regardless of the provider, thus they may be
provided by a physician, nurse, or other health care provider and are
still considered first aid.
(1) Visit(s) to a health care provider limited to observation
(2) Diagnostic procedures, including the use of prescription
medications solely for diagnostic purposes (e.g. eye drops to dilate
pupils)
(3) Use of nonprescription medications, including antiseptics
(4) Simple administration of oxygen
(5) Administration of tetanus or diphtheria shot(s) or booster(s)
(6) Cleaning, flushing or soaking wounds on skin surface
(7) Use of wound coverings such as bandages, gauze pads, etc.
(8) Use of any hot/cold therapy (e.g. compresses, soaking,
whirlpools, non-prescription skin creams/lotions for local relief,
etc.) except for musculoskeletal disorders (See Mandatory Appendix B)
(9) Use of any totally non-rigid, non-immobilizing means of support
(e.g. elastic bandages)
(10) Drilling of a nail to relieve pressure for subungual hematoma
(11) Use of eye patches
(12) Removal of foreign bodies not embedded in the eye if only
irrigation or removal with a cotton swab is required
(13) Removal of splinters or foreign material from areas other than
the eyes by irrigation, tweezers, cotton swabs or other simple means
Health care provider is a person operating within the scope of his
or her license, registration or certification in health care.
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.
Medical treatment includes any medical care or treatment beyond
``first aid''.
Responsible Company Official is the person accountable for
certifying the accuracy and completeness of the entries on the OSHA
Injury and Illness Log and Summary. This person must be either an owner
of the company, an officer of the corporation, the highest ranking
company official working at the establishment, or the immediate
supervisor of the highest ranking company official working at the
establishment.
Restricted work activity means the employee is not capable of
performing at full capacity for a full shift:
(1) The task he or she was engaged in at the time of injury or
onset of illness (the task includes all facets of the assignment the
employee was performing); OR
(2) His or her daily work activity (daily work activity includes
all assignments the employee was expected to perform on the day of
injury or onset of illness).
Site controlling employer is an employer in the construction
industry (SIC codes 15, 16 and 17) with contractual, legal and/or
practical control over the performance, timing, or coordination of
other employers' work on a construction project with an initial total
contract value of one million dollars ($1,000,000) or more. An employer
(such as a general contractor) that retains another employer to work on
the project is presumed to have sufficient control over the
subcontractor's performance to be considered a site controlling
employer. In addition, an employer (such as a construction manager) is
a site controlling employer if it has managerial or supervisory
authority with respect to employers engaged on the project, regardless
of whether it has a contractual relationship with those employers.
Subcontractor employees are employees of construction firms (in
SICs 15, 16, and 17) who are present at a construction project in
connection with their job(s) who are not employees of the site
controlling employer at that construction project.
Work environment means the establishment and other locations where
employees are engaged in work or are present as a condition of their
employment.
Work-related. An injury or illness is work-related if an event or
exposure in the work environment either caused or contributed to the
resulting condition, or aggravated a pre-existing condition. Work-
relatedness is presumed for injuries and illnesses resulting from
events or exposures occurring at the employer's establishment. Work-
relatedness is not presumed for injuries and illnesses resulting from
events or exposures away from the employer's establishment; they are
considered work-related only if the worker is engaged in a work
activity or is present as a condition of employment. See Mandatory
Appendix A to part 1904 for a discussion of work-relatedness and
criteria for rebutting the presumption of work-relatedness.
Sec. 1904.4 OSHA Injury and Illness Log and Summary (OSHA Form 300 or
Equivalent).
(a) Each employer shall maintain for each establishment an OSHA
Injury and Illness Log and Summary [OSHA Form 300 (formerly OSHA No.
200)] or equivalent form for recordable injuries and illnesses
experienced by his or her employees. Employers with multiple
establishments may maintain a consolidated log for establishments
employing no more than 20 employees. Employers who exercise this option
must enter the address of the affected employee's establishment in the
department column for each recorded injury or illness.
(b) Each employer shall enter every recordable injury and illness
within 7 calendar days of receiving information
[[Page 4060]]
that a recordable injury or illness has occurred. A recordable injury
or illness is one which meets all of the following four criteria:
(1) An injury or illness exists (see the definition of injury or
illness for additional information); and
(2) The injury or illness is work-related (see the definition of
work-related and Appendix A to part 1904 for additional information);
and
(3) The injury or illness is new. A new injury or illness does not
result from the recurrence of a pre-existing condition if no new or
additional workplace incident or exposure occurs. A recurrence of a
previous work related injury or illness is presumed to be a new case
when it either (1) results from a new work event or exposure, or (2) 45
days have elapsed since medical treatment, restricted work or days away
from work were discontinued and the last signs or symptoms were
experienced;
(Note: This presumption is rebuttable by medical evidence
indicating that the prior case had not been resolved.)
and
(4) The injury or illness meets one or more of the following:
(i) results in death or loss of consciousness,
(ii) results in day(s) away from work, restricted work activity or
job transfer,
(iii) requires medical treatment beyond first aid, or
(iv) is a recordable condition listed in the Mandatory Appendix B
to part 1904.
(5) See Appendix C to part 1904 for a decision tree for recording
occupational injuries and illnesses.
(c) Any employer may maintain the OSHA Injury and Illness Log and
Summary (OSHA Form 300) on an equivalent form, by means of data
processing equipment, or both, when all of the following conditions are
met:
(1) The equivalent form or computer printout is as readable and
understandable as the OSHA Form 300 to a person familiar with the OSHA
Form 300.
(2) The equivalent form or computer printout must contain, at a
minimum, the same information as found on the OSHA Form 300.
Sec. 1904.5 OSHA Injury and Illness Incident Record (OSHA Form 301 or
Equivalent).
(a) In addition to the OSHA Injury and Illness Log and Summary
(OSHA Form 300) provided for under Section Sec. 1904.4(a) of this Part,
each employer, shall complete an OSHA Injury and Illness Incident
Record [OSHA Form 301 (formerly OSHA Form 101)] for each recordable
injury or illness experienced by employees of that establishment,
within 7 calendar days of receiving information that a recordable
injury or illness has occurred. Each OSHA Form 301 must contain the
unique case or file number relating it to the corresponding case entry
on the OSHA Form 300.
(b) An employer may maintain the OSHA Form(s) 301 on an equivalent
form(s), by means of data processing equipment, or both, when all of
the following conditions are met:
(1) The equivalent form or computer printout is as readable and
understandable as the OSHA Form 301 to a person familiar with the OSHA
Form 301.
(2) The equivalent form or computer printout must contain, all of
the information found on the OSHA Form 301, or must be supplemented by
an OSHA Form 301 containing the missing information. The detailed
information concerning the injury or illness (questions 16, 17 and 18)
must be asked in the same order and using identical language from the
Form 301. All other questions may be asked in any manner and in any
order.
Sec. 1904.6 Preparation, certification and posting of the year-end
summary.
(a) Each employer shall post a year-end summary of occupational
injuries and illnesses for each establishment. This summary shall
consist of the year's injury and illness totals from the OSHA Form 300
or equivalent, calendar year covered, company name, establishment name,
establishment address, annual average number of employees, the total
hours worked by all employees, and the employee access and employer
penalty statements as found on the OSHA Form 300. If no injuries or
illnesses occurred during the year: Zeroes must be entered on the
totals line; annual average number of employees and total hours worked
by all employees must be entered; and the form shall be posted. Note:
The OSHA 300 Log may be used for the summary. The posting requirement
may be met by simply copying and posting the portion of the 300 Log to
the right of column A.
(b) A responsible company official (see the definition of
responsible company official for further information) shall sign the
summary of occupational injuries and illnesses to certify that he or
she has examined the OSHA Injury and Illness Log and Summary and that
the entries on the form and the year-end summary are true, accurate and
complete.
(c)(1) Each employer shall post a copy of the establishment's year-
end summary in each establishment in the same manner that notices are
required to be posted under 29 CFR 1903.2(a)(1). The summary shall be
completed and posted no later than February 1 of the year following the
calendar year covered by the summarized records, and shall remain in
place until January 31 of the following year.
(2) For employees who do not primarily report to or work at a
single establishment, employers shall satisfy this posting requirement
by presenting or mailing a copy of the summary to each employee who is
on the payroll at any time during the month of January following the
calendar year covered by the year-end summary.
(3) For employers who maintain a consolidated log of small
establishments under Sec. 1904.4(a), employers shall satisfy this
posting requirement by posting a year-end summary based on the
consolidated log in each establishment.
(4) Multi-establishment employers do not have to post year-end
summaries for establishments that have permanently closed during the
calendar year.
Sec. 1904.7 Location of records.
(a) The records required by Secs. 1904.4, 1904.5, 1904.6 and
1904.17 for employees and ``subcontractor employees'' who report to or
work at a single establishment, such as a factory, construction site,
grocery store, hospital, warehouse, central administrative office, etc.
shall be kept at the establishment.
(b) Records for employees who report to a particular establishment
but work elsewhere shall be kept at the establishment where the
employees report each day.
(c) For employees who normally report to one establishment but are
injured or become ill at another establishment within the same company,
a recordable injury or illness shall be entered on the Log of the
establishment in which they were injured or became ill.
(d) Records for employees who do not report to any establishment on
a regular basis may be kept at the transient work site(s) for each
operation or group of operations or they may be kept at an established
central location by:
(1) Having the address and telephone number of the central location
available at each worksite; and
(2) Having personnel available at the central location during
normal business hours to provide information from the records kept
there.
(e) Any employer may keep the OSHA Form 300 or OSHA Form(s) 301 at
a location other than the establishment, as long as the information is
retrievable in
[[Page 4061]]
accordance with the provisions defined in Sec. 1904.11, Access to
records.
Sec. 1904.8 Period covered.
Records shall be kept on a calendar year basis.
Sec. 1904.9 Retention and updating of work-related injury and illness
records.
(a) Retention. OSHA Forms 300 and 301 or equivalents, year-end
summaries, and injury and illness records for ``subcontractor
employees'' as required under Sec. 1904.17 of this Part shall be
retained for 3 years following the end of the year to which they
relate.
(b) Updating. During the retention period, employers must revise
the OSHA Form 300 or equivalent to include newly discovered recordable
injuries or illnesses. Employers must revise the OSHA Form 300 to
reflect changes which occur in previously recorded injuries and
illnesses. If the description or outcome of a case changes, remove the
original entry and enter the new information to reflect the more severe
consequence. Employers must revise the year-end summary at least
quarterly if such changes have occurred.
Note to Sec. 1904.9: Employers are not required to update OSHA
Form 301 to reflect changes in previously recorded cases.
Sec. 1904.10 Change of ownership.
Where an establishment has changed ownership, each employer shall
be responsible for recording and reporting occupational injuries and
illnesses only for that period of the year during which he or she owned
such establishment, but the new owner shall retain all records of the
establishment kept by the prior owner, as required by Sec. 1904.9(a) of
this Part.
Sec. 1904.11 Access to records.
(a) 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.
(b) Employee(s), former employee(s) and/or their designated
representative(s). (1) Upon request, the employer shall make the OSHA
Form 300 or equivalent available for viewing by an employee(s), former
employee(s), and/or their designated representative(s) by the close of
business on the next scheduled work day. The employee, former employee,
and/or their designated representative(s) shall have access to the
entire OSHA Form 300 (Log), including personal identifiers, for any
establishment in which the employee is or has been employed. This
includes access to the current Log and all Logs retained and maintained
pursuant to Sec. 1904.9.
(2) Upon request, the employer shall make available to an
employee(s) or former employee(s) for viewing his or her OSHA Form(s)
301 or equivalent for his or her own recordable injury or illness by
the close of business on the next scheduled workday.
(3) The employer shall also make copies available within 7 calendar
days whenever an individual who has a right to view a record(s) listed
in paragraphs (b) (1) and (2) of this section requests a copy, either
in person or in writing. The employer shall not, in writing or
otherwise, attempt to restrict the employees' use of such copies. The
employer shall assure that either:
(i) A copy of the record(s) is provided without cost to the
individual;
(ii) The necessary copying facilities (e.g., photocopying) are made
available without cost to the individual for copying the record(s); or
(iii) The record(s) is loaned to the individual for a reasonable
time to enable a copy to be made.
(4) Whenever a record has been previously provided without cost to
an employee(s), former employee(s) and/or their designated
representative(s), the employer may charge reasonable, non-
discriminatory administrative costs (i.e. search and copying expenses
but not including overhead expenses) for a request by the same person
for additional copies of the record, except that an employer shall not
charge for an initial request of a copy of an updated or corrected
record.
(5) Upon request, the employer shall make available to an
employee(s), former employee(s) or his or her designated representative
access to all OSHA Form(s) 301 or equivalent. Access shall be provided
in a reasonable time. The employer may charge a reasonable fee for
searching and copying expenses.
(c) Nothing in this section shall be deemed to preclude employees
and their designated representatives from collectively bargaining to
obtain access to information relating to occupational injuries and
illnesses in addition to the information made available under this
section.
(d) In the case of a deceased or legally incapacitated employee,
the employee's legal representative(s) may directly exercise all the
employee's rights under this section.
Sec. 1904.12 Reporting of fatality or multiple hospitalization
incidents.
(a) Within 8 hours after the death of any employee from a work-
related incident or the in-patient hospitalization of three or more
employees as a result of a work-related incident, the employer(s) of
each employee so affected shall, report the fatality/multiple
hospitalization by telephone or in person to the Area Office of the
Occupational Safety and Health Administration (OSHA), U.S. Department
of Labor, that is nearest to the site of the incident during regular
business hours, or by using the OSHA emergency toll-free central
telephone number (1-800-321-OSHA [6742]) during non business hours.
Note: The site controlling employer or designee will be responsible for
making the report if no more than two employees of a single employer
were hospitalized but, collectively, three or more workers were
hospitalized as in-patients.
(b) This requirement applies to each such fatality or
hospitalization of three or more employees which occurs within thirty
(30) days of an incident.
(c) Exception: If the employer does not learn of a reportable
incident at the time it occurs and the incident would otherwise be
reportable under paragraphs (a) and (b) of this section, the employer
shall make the report within 8 hours of the time the incident is
reported to any agent or employee of the employer.
(d) Each report required by this section shall relate the following
information: establishment name, location of incident, time of the
incident, number of fatalities or hospitalized employees, contact
person, phone number, and a brief description of the incident.
[[Page 4062]]
Sec. 1904.13 Reports by employers.
(a) Section 24 of the Act, 29 U.S.C. 673, directs the Secretary of
Labor, in consultation with the Secretary of Health and Human Services,
to develop and maintain a program of collection, compilation, and
analysis of occupational safety and health statistics. Section 24 also
requires employers to file reports with the Secretary on ``the basis of
records made and kept pursuant to Section 8(c) of this Act.'' Section
8(c), 29 U.S.C. 657(c), requires each employer to ``make, keep and
preserve, and make available to the Secretary or the Secretary of
Health and Human Services, such records regarding his activities
relating to this Act'' as prescribed by regulation for enforcement of
the Act or ``for developing information regarding the causes and
prevention of occupational accidents and illnesses.'' Section 8(c) also
directs the Secretary of Labor, in cooperation with the Secretary of
Health and Human Services, to prescribe regulations requiring employers
to maintain accurate records of, and to make periodic reports on work-
related deaths, injuries, and illnesses.
(b) Pursuant to the statutory authority described above, the
Secretary of Labor and Secretary of Health and Human Services may
request reports from employers regarding the employers' activities
relating to the Act. These requests for reports shall be in writing,
shall describe what information must be reported, and may include a
request for copies of records kept pursuant to 29 CFR Part 1904,
information that the employer is required to maintain by regulations or
standards promulgated pursuant to the Act, information required to
participate in periodic surveys of occupational injuries and illnesses,
and/or information necessary to determine rates of injury, illness or
exposure, such as employment and hours of work. Note: Employers who are
otherwise exempted under Sec. 1904.2 of this Part, shall upon
notification by the Secretary of Labor or Secretary of Health and Human
Services, maintain the OSHA Log and Summary on Injuries and Illnesses
for any year in which they are notified that they have been selected
for participation in a data collection program of occupational injuries
and illnesses.
(c) The employer shall file the requested reports with the
Secretary within 21 calendar days of receipt of the request, unless the
Secretary requests otherwise.
(d) Nothing in any State plan approved under section 18(c) of the
Act shall affect the duties of employers to submit required reports.
Sec. 1904.14 Recordkeeping under approved State plans.
(a) Recordkeeping and reporting requirements promulgated by State
plans are required to be substantially identical to this Part (see 29
CFR 1902.3(k) and 29 CFR 1952.4). State plans shall promulgate
recordkeeping and reporting requirements that are identical to the
Federal requirements for determining the types of injuries and
illnesses that will be entered into the records and the manner in which
they are entered. All other recordkeeping and reporting requirements
that are promulgated by State plans shall be at least as effective as
the Federal requirements.
(b) Records maintained by an employer and reports submitted,
pursuant to and in accordance with the requirements of an approved
State plan under section 18 of the Act, shall be regarded as compliance
with this Part.
(c) State and local government agencies are exempt from Federal
OSHA recordkeeping in States under the jurisdiction of Federal OSHA.
However, in States with their own OSHA approved safety and health
programs, State and local government agencies must keep injury and
illness records in accordance with State law and 29 CFR 1952.4.
Sec. 1904.15 Petitions for recordkeeping exceptions.
All requests or variances for recordkeeping exceptions shall be
made in accordance with the procedures set forth in 29 CFR 1905. Any
exception granted prior to [Effective date of final rule] is null and
void.
Sec. 1904.16 Falsification of, or failure to keep records or provide
reports.
(a) Section 17(g) of the Act provides that ``Whoever knowingly
makes any false statement, representation, or certification in any
application, record, report, plan or other document filed or required
to be maintained pursuant to this Act shall, upon conviction, be
punished by a fine of not more than $10,000, or by imprisonment, for
not more than 6 months or both.''
(b) Failure to maintain records or file reports as required by Part
1904, or as required by the forms and instructions issued under Part
1904, may result in the issuance of citations and assessment of
penalties as provided for in sections 9, 10, and 17 of the Act.
(c) An employee who is subject to retaliatory discrimination by his
or her employer for filing a report of a work-related injury or illness
is protected by Section 11(c) of the OSH Act and 29 CFR 1977
Discrimination Against Employees Exercising Rights Under the Williams-
Steiger Occupational Safety and Health Act of 1970. An employer who
violates section 11(c) may be required to reinstate or rehire a fired
employee with back pay.
Sec. 1904.17 Subcontractor records for major construction projects.
(a) Any site controlling employer in the construction industry
(SICs 15, 16 and 17), for construction projects with an initial total
contract value of one million dollars ($1,000,000) or more, shall
maintain a separate occupational injury and illness record
(subcontractor record) for recordable injuries and illnesses sustained
by ``subcontractor employees'' (not considered employees of the site
controlling employer) while working at the construction project. On the
subcontractor record, the site controlling employer is only required to
record occupational injuries and illnesses of ``subcontractor
employees'' who are employed by a construction firm who had eleven (11)
or more full and/or part-time employees at any one time during the
calendar year immediately preceding the current calendar year. (Note:
The size threshold is based on the number of employees of the entire
firm or corporation, not of an individual establishment.)
(b) The site controlling employer shall comply with the
requirements of Sec. 1904.4(b) in determining which injuries and
illnesses are recordable on the subcontractor record, and when to
record them. The injury and illness information for each recordable
case occurring to ``subcontractor employees'' shall include the
person's name, company, date of the event which resulted in the injury
or illness, and a brief description of the injury or illness. The site
controlling employer shall also include the location of the site and
the period of time covered on the record. The site controlling employer
shall maintain all subcontractor records pertaining to one construction
site in a consolidated file by calendar year. The site controlling
employer has the option of using a separate OSHA Form 300, an
equivalent form, or a collection of records to satisfy this
requirement. Note: The employer of the ``subcontractor employee'' is
not relieved of the responsibility of completing the OSHA Form 300 or
equivalent as required by Sec. 1904.4(a).
(c) For those construction projects where there is more than one
site controlling employer, those employers may agree to assign the
responsibility for maintaining the subcontractor records to one of the
site controlling employers by means of a written
[[Page 4063]]
agreement. When such a written agreement exists, the other site
controlling employers on the project are not required to maintain the
subcontractor record regardless of whether they may be deemed to be
site controlling employers.
(d) The site controlling employer is not required to complete an
OSHA Form 301 for injuries or illnesses experienced by ``subcontractor
employees''. Note: The employer of the ``subcontractor employee'' is
not relieved of the responsibility of completing the OSHA Form 301 or
equivalent as required by Sec. 1904.5(a).
(e) The site controlling employer is not required to prepare a
year-end summary for injuries and illnesses experienced by
``subcontractor employees''. Note: The employer of the ``subcontractor
employee'' is not relieved of the responsibility of completing the
year-end summary as required by Sec. 1904.6(a).)
(f) The site controlling employer is not required to update the
injury and illness records for ``subcontractor employees''. Note: The
employer of the ``subcontractor employee'' is not relieved of the
responsibilities to update the injury and illness records as required
by Sec. 1904.9(a).
Appendix A to Part 1904--Work-Relatedness (Mandatory)
If an event or exposure in the work environment either caused or
contributed to an injury or illness, or aggravated a pre-existing
condition, then the case is considered work-related. Work-
relatedness is presumed for injuries and illnesses resulting from
events or exposures occurring at the employer's establishment.
Injuries or illnesses occurring away from the establishment are
considered work-related only if the worker is engaged in a work
activity or is present as a condition of his or her employment.
A. Work-Related Injuries and Illnesses--Special Situations:
Injuries or illnesses are considered to be work-related if they
occur in the following situations:
1. While the employee is engaged in work activity or
apprenticeship/vocational training required by the employer.
2. While the employee is on break, in the rest room or in
storage areas when located on the employer's premises.
3. While the employee is performing work for pay or compensation
at home, if the injury or illness is directly related to the
performance of work rather than the general home environment or
setting.
4. While the employee is traveling on business, including to and
from customer contacts.
5. While the employee is engaged in work activity where a
vehicle is considered the work environment (e.g. truck, taxi, etc.).
B. Non Work-Related Injuries and Illnesses. The following
injuries and illnesses are not considered work-related. Only the
following may be used to rebut the presumption of work-relatedness
that applies to injuries and illnesses occurring at the employers'
establishment:
1. Injuries or illnesses will not be considered work-related if
they occur to individuals present at their employer's establishment
as a member of the general public rather than as a worker.
2. Injuries or illnesses will not be considered work-related if
they involve symptoms that surface at work but solely result from a
non-work-related event or exposure outside of the work environment.
3. Injuries or illnesses will not be considered work-related if
they result solely from voluntary participation in wellness
programs, medical, fitness and recreational activities (e.g.
exercise classes, blood donations, physicals, flu shots,
racquetball, baseball, etc.).
4. Injuries or illnesses will not be considered work-related if
they solely result from a worker eating, drinking or preparing his
or her own food when unrelated to occupational factors.
5. Injuries or illnesses will not be considered work-related if
they are solely the result of workers doing personal tasks
(unrelated to their employment) at the establishment outside of
normal working hours.
6. Cases will not be considered work-related if they result
solely from acts of violence committed by one's family or ex-spouse
when unrelated to the worker's employment, including intentionally
self-inflicted injuries.
7. Injuries or illnesses will not be considered work-related if
they occur on company parking lots and access roads while employees
are arriving at or leaving work.
8. An injury or illness will not be considered work-related if
the worker was never engaged in any duty at work that could have
placed stress on the affected body part or was never exposed to any
chemical or physical agent at work that could be associated with the
observed injury or illness.
9. An injury or illness will not be considered work-related if
the case results solely from activity in voluntary community or
civic projects away from the employer's establishment.
10. An injury or illness will not be considered work-related if
the case results solely from normal body movements, i.e. walking
unencumbered, talking, tying a shoe, sneezing, coughing, provided
the activity does not involve a job-related motion and the work
environment does not contribute to the injury or illness.
11. Mental illness will not be considered work-related, except
mental illnesses associated with post-traumatic stress.
C. Travel Status.
1. Employees in travel status (i.e. traveling on company
business) should be considered engaged in work-related activities
during all of their time spent in the ``interest of their company''.
This includes, but is not limited to, travel to and from customer
contacts, conducting job tasks, and entertaining or being
entertained for the purpose of transacting, discussing, or promoting
business.
2. When traveling employees check into a hotel, motel or other
lodging, they establish a ``home away from home''. Thereafter, their
activities are evaluated in the same manner as for non-traveling
employees. For example, injuries sustained when commuting from a
hotel to a temporary work site are not work-related, just as
injuries sustained during an employee's normal commute from a
permanent residence to an office would not be considered work-
related.
3. While an employee is in travel status, the following
situations are not considered work-related:
i. Normal commuting between the employee's temporary residence
and his or her job; and
ii. Situations where the employee departs from a reasonably
direct route of work-related travel for personal reasons (e.g., a
side trip for a vacation).
D. Employees who work in their own home. An injury or illness
will be considered work-related if it occurs while the employee is
performing work for pay or compensation in the home, if the injury
or illness is directly related to the performance of work rather
than the general home environment or setting.
E. Employees who live at the employer's establishment.
1. Some workplaces provide living quarters for employees. Off-
shore oil rigs, ships and construction sites at remote locations
commonly provide their employees with living accommodations.
2. In these workplaces, injuries or illnesses are presumed to be
work-related if the employee is on-duty or engaged in a work
activity. The injury or illness is also considered work-related if
the employee was harmed as a result of a serious workplace accident
such as a chemical release, fire, explosion, shipwreck, steam
release, or building collapse.
3. All other injuries and illnesses occurring during off-duty
hours are considered non-work-related.
Appendix B to Part 1904--Recording of Specific Conditions
(Mandatory)
The purpose of this appendix is to provide information for the
recording of specific conditions which may not be captured by the
other recordability criteria. For purposes of OSHA-mandated
recordkeeping, the conditions listed in this appendix are considered
Recordable Injuries and Illnesses when the condition listed is work-
related. The employer shall evaluate, for OSHA injury and illness
recordkeeping purposes, all information received as a result of
medical surveillance required by an OSHA standard.
Conditions not included in this Appendix that otherwise meet the
criteria in the Sec. 1904.4.(c) must be recorded.
[[Page 4064]]
Table Of Specific Conditions
----------------------------------------------------------------------------------------------------------------
System Condition Recording criteria
----------------------------------------------------------------------------------------------------------------
Multi-system........................... Carbon monoxide Elevated carboxyhemoglobin levels and/or
poisoning. diagnosis by a health care provider.
Mercury............... 15 micrograms or greater per liter (g/
L) of whole blood or 35 micrograms or greater
per gram (g/g) creatinine in urine
and/or diagnosis of mercury poisoning by a
health care provider.
Lead.................. 40 micrograms or greater per 100 grams (g/100g) of whole blood and/or diagnosis of
lead poisoning by a health care provider.
Cadmium............... --3 micrograms or greater per gram (g/
g) creatinine in urine; or
--B2-microglobulin 300 micrograms or greater
per gram (g/g) creatinine in urine;
or
--5 micrograms of cadmium or greater per liter
(g/L) of whole blood.
Benzene............... Phenol level of 75 milligrams or greater per
liter (mg/L) of urine or abnormal blood
counts.
Musculo-skeletal system................. Fractures of the bones Positive X-ray and/or diagnosis by a health
or teeth. care provider.
Musculoskeletal Diagnosis by a health care provider and/or
disorders. objective finding(s) (e.g. positive Tinel's,
Phalen's or Finkelstein's test; or swelling,
redness indicative of inflammation,
deformity, loss of motion, etc.)
Musculoskeletal disorders may occur in the
neck, back, shoulder, arm, hand, fingers, leg
and/or foot. Examples of musculoskeletal
disorders include but are not limited to
carpal tunnel syndrome, tendinitis,
epicondylitis, synovitis, thoracic root
lesions, Raynaud's syndrome, and tarsal
tunnel syndrome.
For musculoskeletal disorders only, medical
treatment shall include two or more
applications of hot/cold therapy as directed
by a health care provider.
Sensory organs.......................... UV burning of the Recognition/diagnosis of welder's flash or
cornea or retina. flashburn.
Hearing loss.......... An average shift of 15 decibels (dB) or more
at 2000, 3000, and 4000 hertz in one or both
ears. The change in hearing may be adjusted
for presbycusis (age related hearing loss).
The record of the injury or illness may be
deleted if a retest performed with 30 days
disproves the original shift. Once a 15 dB
shift has occurred, the baseline (for
recordkeeping purposes) should be adjusted to
reflect this result. A subsequent test
revealing an additional 15 dB shift from this
new or revised baseline value is a new injury
or illness. Work-relationship is presumed if
an employee is exposed to an 8 hour time
weighted average sound level of noise
equaling or exceeding 85 dB(A).
Skin.................................... Burns (heat, chemical Third degree burns (and first and second
and radiation burns). degree burns requiring medical treatment
beyond first aid, restricted work activity,
days away from work, loss of consciousness or
death).
Skin disorders........ Lasting beyond 48 hours, including but not
limited to allergic or irritant contact
dermatitis.
Lacerations........... Requiring closure including but not limited to
the use of sutures, adhesive closures and
staples.
Respiratory system...................... Asthma and other --Initial episode, regardless of duration,
obstructive airway diagnosed by a health care provider. Or
diseases.
--Any recurrent episode, regardless of
duration, that results in the administration
of prescription drugs and/or diagnosis by a
health care provider.
Note: Obstructive airway diseases include but
are not limited to reactive airways
dysfunction syndrome (RADS), chronic
obstructive pulmonary disease (COPD), and
chronic obstructive bronchitis.
Pneumoconiosis (e.g. Diagnosis by a health care provider,
asbestosis, radiography profusion category of 1/1 or
silicosis, coal greater by the International Labor
worker's Organization (ILO) classification system.
pneumoconiosis,
beryllium disease,
etc.).
Mesothelioma.......... Diagnosis by a health care provider, pleural
plaques and/or pleural thickening.
Byssinosis............ Diminished pulmonary function (an FEV1 of less
than 80% of the predicted value)and/or
diagnosis by a health care provider when
worker has been exposed to dust from cotton
or flax which has not undergone wet
treatments.
Tuberculosis infection First positive tuberculin skin test reaction
or disease. indicative of new infection, except pre-
placement; Or
Diagnosis of active tuberculosis by a health
care provider. A case of tuberculosis disease
or tuberculosis infection is presumed to be
work-related in the following industries:
correctional facilities; health care
facilities; homeless shelters; long-term care
facilities for the elderly; and drug
treatment centers. The employer may rebut
this presumption of work relationship by
providing evidence that the employee is known
to have had a non-work exposure to active TB.
Examples include situations in which (1) An
employee is living in a household with a
person diagnosed with active TB or (2) the
Public Health Department lists the employee
as a contact to a case of active TB.
For all other industries a case would be
considered work-related under the following
circumstance: An employee tests positive for
tuberculosis infection after being exposed to
a person within the work environment known to
have tuberculosis disease. The case of the
person with TB disease, however, would not be
presumed work-related if there was no known
exposure within the work environment.
[[Page 4065]]
Respiratory system...................... Hypersensitivity Diagnosis by a health care provider of
pneumonitis (non- woodworker's lung, farmer's lung, malt
asthmatic allergic worker's lung, mushroom worker's lung, cheese
breathing disorders washer's lung, miller's lung, etc. when the
caused by organic worker has been exposed to the relevant
dust and other substance.
antigenic aerosols).
Toxic inhalation Diagnosis by a health care provider and/or
injury--breathing respiratory distress requiring overnight
disorders (such as hospitalization.
Metal Fume Fever)due
to inhaling chemicals.
Miscellaneous........................... Bloodborne pathogen Any workplace bloodborne pathogen exposure
diseases. incident (as defined in 1910.1030(b)) that
results in a positive blood test or diagnosis
by a health care provider indicating AIDS,
HIV seroconversion, hepatitis B or hepatitis
C; Or
Any laceration or puncture wound that involves
contact with another person's blood or other
potentially infectious materials.
Note: to protect employee confidentiality,
employers shall record occupationally
acquired bloodborne pathogen diseases, such
as hepatitis B, simply as the initial
bloodborne exposure incident and note the
exposure type (e.g. needlestick).
Seroconversion and specific type of
bloodborne disease shall not be recorded.
Hepatitis (toxic or Positive blood test and/or diagnosis by a
infectious). health care provider.
----------------------------------------------------------------------------------------------------------------
Work-related injuries and illnesses are recorded if they result in death, loss of consciousness, days away
from work, restricted work activity, medical treatment beyond first aid, or the criteria in this table.
BILLING CODE 4510-26-P
[[Page 4066]]
Appendix C to Part 1904--Decision Tree for Recording Occupational
Injuries and Illnesses
[GRAPHIC] [TIFF OMMITTED] TP02FE96.004
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[[Page 4067]]
PART 1952--[AMENDED]
2. The authority citation for Part 1952 continues to read as
follows:
Authority: 29 U.S.C. 667; 29 CFR Part 1902, Secretary of Labor's
Order No. 1-90 (55 FR 9033).
3. Section 1952.4 would be revised to read as follows:
Sec. 1952.4 Injury and illness recordkeeping and reporting
requirements.
(a) Injury and illness recordkeeping and reporting requirements
promulgated by State plans are required to be substantially identical
to 29 CFR Part 1904. State plans shall promulgate recordkeeping and
reporting requirements that are identical to the Federal requirements
for determining the types of injuries and illnesses that will be
entered into the records and the manner in which they are entered. All
other recordkeeping and reporting requirements that are promulgated by
State plans shall be at least as effective as the Federal requirements.
(b) A State is not prohibited from requiring supplementary
reporting or recordkeeping data, but such additional data must be
approved by the Occupational Safety and Health Administration to insure
that there will be no interference with the uniform reporting
objectives.
(c) Variances to State injury and illness recordkeeping and
reporting requirements under an approved plan must be obtained from the
Occupational Safety and Health Administration of the U.S. Department of
Labor. Therefore, a State may not grant a variance to recordkeeping and
reporting requirements under their own procedures.
(d) In order to insure the uniformity of the injury and illness
statistics, a State must recognize all variances granted by the
Occupational Safety and Health Administration.
[FR Doc. 96-1942 Filed 2-1-96; 8:45 am]
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