Occupational Injury and Illness Recording and Reporting Requirements

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

[[Page 4032]]

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).....

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