OSHA Recordkeeping Handbook - Msabc.net

www.osha.govOSHARecordkeepingHandbookThe Regulation and RelatedInterpretations for Recordingand Reporting OccupationalInjuries and IllnessesOSHA 3245-01R 2005

Employers are responsible for providing a safe andhealthful workplace for their employees. OSHA’srole is to assure the safety and health of America’sworkers by setting and enforcing standards; providingtraining, outreach and education; establishingpartnerships; and encouraging continual improvementin workplace safety and health. For moreinformation, visit www.osha.gov.This handbook provides a general overview of aparticular topic related to OSHA standards. It doesnot alter or determine compliance responsibilitiesin OSHA standards or the Occupational Safety andHealth Act of 1970. Because interpretations andenforcement policy may change over time, youshould consult current OSHA administrative interpretationsand decisions by the OccupationalSafety and Health Review Commission and theCourts for additional guidance on OSHA compliancerequirements.This publication is in the public domain and maybe reproduced, fully or partially, without permission.Source credit is requested but not required.This information is available to sensory impairedindividuals upon request. Voice phone: (202) 693-1999; teletypewriter (TTY) number: (877) 889-5627.

OSHARecordkeeping HandbookThe Regulation and Related Interpretations for Recordingand Reporting Occupational Injuries and IllnessesOccupational Safety and Health AdministrationU.S. Department of LaborDirectorate of Evaluation and AnalysisOffice of Statistical AnalysisDivision of RecordkeepingOSHA 3245-01R2005

PrefaceThe Occupational Safety and Health Act of 1970 (OSHAct) requires covered employers to prepare andmaintain records of occupational injuries and illnesses.The Occupational Safety and Health Administration(OSHA) in the U.S. Department of Labor is responsiblefor administering the recordkeeping systemestablished by the Act. The OSH Act and recordkeepingregulations in 29 CFR 1904 and 1952 providespecific recording and reporting requirements whichcomprise the framework for the nationwide occupationalsafety and health recording system.Under this system, it is essential that data recordedby employers be uniform and accurate to assure theconsistency and validity of the statistical data whichis used by OSHA for many purposes, includinginspection targeting, performance measurementunder the Government Performance and Results Act(GPRA), standards development, resource allocation,Voluntary Protection Program (VPP) eligibility, and"low-hazard" industry exemptions. The data also aidsemployers, employees and compliance officers inanalyzing the safety and health environment at theemployer’s establishment, and is the source of informationfor the OSHA Data Initiative (ODI) and theBureau of Labor Statistics’ (BLS) Annual Survey.In January 2001, OSHA issued a final rule revisingthe § 1904 and § 1952 Occupational Injury and IllnessRecording and Reporting Requirements (Recordkeeping)regulations, the first revision since 1978.The goals of the revision were to simplify the system,clarify ongoing concepts, produce more usefulinformation and better utilize modern technology.The new regulation took effect on January 1, 2002.As part of OSHA’s extended outreach efforts, theagency also produced a Recordkeeping Policies andProcedures Manual (CPL 2-0.135, December 30, 2004),which contained, along with other related information,a variety of Frequently Asked Questions. Inaddition, in 2002, a detailed Injury and IllnessRecordkeeping website was established containinglinks to helpful resources related to Recordkeeping,including training presentations, applicable FederalRegister notices, and OSHA’s recordkeeping-relatedLetters of Interpretation. (See www.osha.gov/recordkeeping/index.html).This publication brings together relevant informationfrom the Recordkeeping rule, the policies and proceduresmanual and the website. This OSHA RecordkeepingHandbook is available in both print and electronicformats. It is organized by regulatory sectionand contains the specific final regulatory language,selected excerpts from the relevant OSHA decisionanalysis contained in the preamble to the final rule,along with recordkeeping-related Frequently AskedQuestions and OSHA’s enforcement guidance presentedin the agency’s Letters of Interpretation. Theuser will find this information useful in understandingthe Recordkeeping requirements and will be ableto easily locate a variety of specific and necessaryinformation pertaining to each section of the rule.The information included here deals only with therequirements of the Occupational Safety and HealthAct of 1970 and Parts 1904 and 1952 of Title 29, Codeof Federal Regulations, for recording and reportingoccupational injuries and illnesses. Some employersmay be subject to additional recordkeeping andreporting requirements not covered in this document.Many specific OSHA standards and regulationshave additional requirements for the maintenanceand retention of records for medical surveillance,exposure monitoring, inspections, and otheractivities and incidents relevant to occupational safetyand health, and for the reporting of certain informationto employees and to OSHA. For informationon these requirements, which are not covered in thispublication, employers should refer directly to theOSHA standards or regulations, consult OSHA’s websitefor additional information (www.osha.gov) orcontact their OSHA regional office or participatingState agency.For recordkeeping and reporting questions not coveredin this publication, employers may contact theirOSHA regional office or the participating Stateagency serving their jurisdiction.This handbook was developed within the OSHAOffice of Statistical Analysis (OSA) (Joe DuBois,Ph.D., Director), under the direction of BobWhitmore, Chief of the OSHA RecordkeepingDivision. Special thanks to Valerie Struve, MarkKitzmiller, Jackie Gilmore and Linda Harrell of OSAfor their tireless efforts in its creation.iiOSHA RECORDKEEPINGHANDBOOK

ContentsRecordkeeping HandbookRoadmapSection 1904.0Purpose 1REGULATION 1PREAMBLE DISCUSSION 1FREQUENTLY ASKED QUESTIONS 2LETTERS OF INTERPRETATION 2Section 1904.1Partial exemption for employerswith 10 or fewer employees 3REGULATION 3PREAMBLE DISCUSSION 3FREQUENTLY ASKED QUESTIONS 4LETTERS OF INTERPRETATION 4Section 1904.2Partial exemption for establishmentsin certain industries 5REGULATION 5PREAMBLE DISCUSSION 6FREQUENTLY ASKED QUESTIONS 9LETTERS OF INTERPRETATION 9Section 1904.3Keeping records for morethan one agency 10REGULATION 10PREAMBLE DISCUSSION 10FREQUENTLY ASKED QUESTIONS 10LETTERS OF INTERPRETATION 10Section 1904.4Recording criteria 11REGULATION 11PREAMBLE DISCUSSION 12FREQUENTLY ASKED QUESTIONS 12LETTERS OF INTERPRETATION 12Section 1904.5Determination ofwork-relatedness 13REGULATION 13PREAMBLE DISCUSSION 15FREQUENTLY ASKED QUESTIONS 25LETTERS OF INTERPRETATION 27viSection 1904.6Determination of new cases 39REGULATION 39PREAMBLE DISCUSSION 39FREQUENTLY ASKED QUESTIONS 44LETTERS OF INTERPRETATION 44Section 1904.7General recording criteria 49REGULATION 49PREAMBLE DISCUSSION 53FREQUENTLY ASKED QUESTIONS 67LETTERS OF INTERPRETATION 71Section 1904.8Recording criteria forneedlestick and sharps injuries 79REGULATION 79PREAMBLE DISCUSSION 79FREQUENTLY ASKED QUESTIONS 82LETTERS OF INTERPRETATION 82Section 1904.9Recording criteria for casesinvolving medical removalunder OSHA standards 83REGULATION 83PREAMBLE DISCUSSION 83FREQUENTLY ASKED QUESTIONS 84LETTERS OF INTERPRETATION 84Section 1904.10Recording criteria for casesinvolving occupationalhearing loss 85REGULATION 85PREAMBLE DISCUSSION 86FREQUENTLY ASKED QUESTIONS 96LETTERS OF INTERPRETATION 96Section 1904.11Recording criteria for workrelatedtuberculosis cases 100REGULATION 100PREAMBLE DISCUSSION 100FREQUENTLY ASKED QUESTIONS 102LETTERS OF INTERPRETATION 102OSHA RECORDKEEPINGHANDBOOKiii

Section 1904.12Recording criteria for casesinvolving work-relatedmusculoskeletal disorders 103REGULATION 103PREAMBLE DISCUSSION 103Sections 1904.13 – 1904.28(Reserved) 107Section 1904.29Forms 107REGULATION 107PREAMBLE DISCUSSION 108FREQUENTLY ASKED QUESTIONS 116LETTERS OF INTERPRETATION 117Section 1904.30Multiple businessestablishments 120REGULATION 120PREAMBLE DISCUSSION 120FREQUENTLY ASKED QUESTIONS 122LETTERS OF INTERPRETATION 122Section 1904.31Covered employees 123REGULATION 123PREAMBLE DISCUSSION 123FREQUENTLY ASKED QUESTIONS 127LETTERS OF INTERPRETATION 127Section 1904.32Annual summary 134REGULATION 134PREAMBLE DISCUSSION 134FREQUENTLY ASKED QUESTIONS 138LETTERS OF INTERPRETATION 139Section 1904.33Retention and updating 141REGULATION 141PREAMBLE DISCUSSION 141FREQUENTLY ASKED QUESTIONS 142LETTERS OF INTERPRETATION 142Section 1904.34Change in business ownership 145REGULATION 145PREAMBLE DISCUSSION 145FREQUENTLY ASKED QUESTIONS 145LETTERS OF INTERPRETATION 145Section 1904.35Employee involvement 146REGULATION 146PREAMBLE DISCUSSION 147FREQUENTLY ASKED QUESTIONS 152LETTERS OF INTERPRETATION 153Section 1904.36Prohibition againstdiscrimination 158REGULATION 158PREAMBLE DISCUSSION 158FREQUENTLY ASKED QUESTIONS 158LETTERS OF INTERPRETATION 158Section 1904.37State recordkeepingregulations 159REGULATION 159PREAMBLE DISCUSSION 159FREQUENTLY ASKED QUESTIONS 160LETTERS OF INTERPRETATION 161Section 1904.38Variances from therecordkeeping rule 162REGULATION 162PREAMBLE DISCUSSION 163FREQUENTLY ASKED QUESTIONS 164LETTERS OF INTERPRETATION 164Section 1904.39Reporting fatalities andmultiple hospitalizationincidents to OSHA 165REGULATION 165PREAMBLE DISCUSSION 166FREQUENTLY ASKED QUESTIONS 168LETTERS OF INTERPRETATION 168ivOSHA RECORDKEEPINGHANDBOOK

Section 1904.40Providing records togovernment representatives 169REGULATION 169PREAMBLE DISCUSSION 169FREQUENTLY ASKED QUESTIONS 171LETTERS OF INTERPRETATION 171Section 1904.41Annual OSHA injury andillness survey of ten ormore employers 174REGULATION 174PREAMBLE DISCUSSION 174FREQUENTLY ASKED QUESTIONS 175LETTERS OF INTERPRETATION 175Section 1904.42Requests from the Bureau ofLabor Statistics for data 176REGULATION 176PREAMBLE DISCUSSION 176FREQUENTLY ASKED QUESTIONS 177LETTERS OF INTERPRETATION 177Section 1904.45OMB control numbers underthe Paperwork Reduction Act 182REGULATION 182PREAMBLE DISCUSSION 182FREQUENTLY ASKED QUESTIONS 182LETTERS OF INTERPRETATION 182Section 1904.46Definitions 183REGULATION 183PREAMBLE DISCUSSION 184FREQUENTLY ASKED QUESTIONS 190LETTERS OF INTERPRETATION 190Section 1952.4Injury and illness recordingand reporting requirements 192REGULATION 192PREAMBLE DISCUSSION 192FREQUENTLY ASKED QUESTIONS 192LETTERS OF INTERPRETATION 192Section 1904.43Summary and postingof the 2001 data 178REGULATION 178PREAMBLE DISCUSSION 178FREQUENTLY ASKED QUESTIONS 179LETTERS OF INTERPRETATION 179Section 1904.44Retention and updatingof old forms 180REGULATION 180PREAMBLE DISCUSSION 180FREQUENTLY ASKED QUESTIONS 181LETTERS OF INTERPRETATION 181OSHA RECORDKEEPINGHANDBOOKv

Recordkeeping Handbook RoadmapThis roadmap will assist readers in locating regulatory language, decision analyses, frequently asked questionsand enforcement guidance letters concerning sections 1904 and 1952 of the OSHA Recordkeeping regulations.Purpose of Rule:See 1904.0Exempt Employers:See 1904.1Exempt Establishments:See 1094.2Requirements of More Than One Agency:See 1904.3Which Injuries to Record:See 1904.41904.51904.61904.7Which Injuries are Work-related:See 1904.5When an Injury Represents a New Case:See 1904.6Needlestick and Sharps Injuries:See 1904.8Medical Removal Cases:See 1904.9Hearing Loss Cases:See 1904.10Tuberculosis Cases:See 1904.11Musculoskeletal Disorder Cases:See 1904.12The Recording Forms:See 1904.29Multiple Business Establishments:See 1904.30Employee Coverage:See 1904.31The Annual Summary:See 1904.32Records Retention and Updating:See 1904.33Changes in Business Ownership:See 1904.34Employee Involvement:See 1904.35Prohibition Against Discrimination:See 1904.36State Recordkeeping Regulations:See 1904.37Variances from the Rule:See 1904.38Fatality/Multiple HospitalizationRequirements:See 1904.39Providing Records to GovernmentRepresentatives:See 1904.40OSHA’s Annual Injury/Illness Survey:See 1904.41Bureau of Labor Statistics Data Requests:See 1904.42Summarizing and Posting Data:See 1904.43Retaining and Updating Forms:See 1904.44Definitions:See 1904.46State-plan State Requirements:See 1952.4viOSHA RECORDKEEPINGHANDBOOK

Section 1904.0Purpose(66 FR 6122, Jan. 19, 2001)§1904.0REGULATION: Section 1904.0Subpart A – Purpose (66 FR 6122, Jan. 19, 2001)Section 1904.0The purpose of this rule (Part 1904) is to require employers to record and report work-related fatalities, injuriesand illnesses.Note to Section 1904.0: Recording or reporting a work-related injury, illness, or fatality does not mean that theemployer or employee was at fault, that an OSHA rule has been violated, or that the employee is eligible forworkers’ compensation or other benefits.PREAMBLE DISCUSSION: Section 1904.0(66 FR 5933-5935, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Subpart A. PurposeThe Purpose section of the final rule explains whyOSHA is promulgating this rule. The Purpose sectioncontains no regulatory requirements and is intendedmerely to provide information. A Note to this sectioninforms employers and employees that recording acase on the OSHA recordkeeping forms does notindicate either that the employer or the employeewas at fault in the incident or that an OSHA rule hasbeen violated. Recording an injury or illness on theLog also does not, in and of itself, indicate that thecase qualifies for workers’ compensation or otherbenefits. Although any specific work-related injury orillness may involve some or all of these factors, therecord made of that injury or illness on the OSHArecordkeeping forms only shows three things: (1) thatan injury or illness has occurred; (2) that the employerhas determined that the case is work-related (usingOSHA’s definition of that term); and (3) that the caseis non-minor, i.e., that it meets one or more of theOSHA injury and illness recording criteria….In the final rule, OSHA has moved much of thismaterial, which was explanatory in nature, from theregulatory text to the preamble. This move has simplifiedand clarified the regulatory text. The finalrule’s Purpose paragraph simply states that: “Thepurpose of this rule (Part 1904) is to require employersto record and report work-related fatalities,injuries and illnesses.”…Many cases that are recorded in the OSHA systemare also compensable under the State workers’compensation system, but many others are not.However, the two systems have different purposesand scopes. The OSHA recordkeeping system isintended to collect, compile and analyze uniform andconsistent nationwide data on occupational injuriesand illnesses. The workers’ compensation system, incontrast, is not designed primarily to generate andcollect data but is intended primarily to provide medicalcoverage and compensation for workers who arekilled, injured or made ill at work, and varies in coveragefrom one State to another….As a result of these differences between the twosystems, recording a case does not mean that the caseis compensable, or vice versa. When an injury or illnessoccurs to an employee, the employer must independentlyanalyze the case in light of both the OSHArecording criteria and the requirements of the Stateworkers’ compensation system to determine whetherthe case is recordable or compensable, or both….OSHA believes that the note to the Purpose paragraphof the final rule will allay any fears employersand employees may have about recording injuriesand illnesses, and thus will encourage more accuratereporting. Both the Note to Subpart A of the final ruleand the new OSHA Form 300 expressly state thatrecording a case does not indicate fault, negligence,or compensability….OSHA RECORDKEEPINGHANDBOOK1

§1904.0…OSHA has rejected the suggestion made bythese commenters to limit the admissibility of theforms as evidence in a court proceeding. Such actionis beyond the statutory authority of the agency,because OSHA has no authority over the courts,either Federal or State….In the final rule, OSHA has decided to eliminatethe sentence of examples to make the regulatory textclearer and more concise. However, OSHA notes thatmany circumstances that lead to a recordable workrelatedinjury or illness are "beyond the employer’scontrol,” at least as that phrase is commonly interpreted.Nevertheless, because such an injury or illnesswas caused, contributed to, or significantlyaggravated by an event or exposure at work, it mustbe recorded on the OSHA form (assuming that itmeets one or more of the recording criteria and doesnot qualify for an exemption to the geographic presumption).This approach is consistent with the nofaultrecordkeeping system OSHA has adopted,which includes work-related injuries and illnesses,regardless of the level of employer control or noncontrolinvolved….…As discussed in the Legal Authority section,above, Congress stated clearly that the OSHA recordkeepingsystem was intended to capture “work-relateddeaths, injuries and illnesses, other than minorinjuries requiring only first aid treatment and whichdo not involve medical treatment, loss of consciousness,restriction of work or motion, or transfer toanother job” (Section 8(c)(2)). …OSHA concludesthat the guidance given by Congress – that employersshould record and report on work-related deaths,and on injuries and illnesses other than minorinjuries, establishes the appropriate recordingthreshold for cases entered into the OSHA recordkeepingsystem….FREQUENTLY ASKED QUESTIONS: Section 1904.0 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.0 PurposeQuestion 0-1. Why are employers required to keeprecords of work-related injuries and illnesses?The OSH Act of 1970 requires the Secretary of Laborto produce regulations that require employers tokeep records of occupational deaths, injuries, and illnesses.The records are used for several purposes.Injury and illness statistics are used by OSHA.OSHA collects data through the OSHA Data Initiative(ODI) to help direct its programs and measure itsown performance. Inspectors also use the data duringinspections to help direct their efforts to the hazardsthat are hurting workers.The records are also used by employers andemployees to implement safety and health programsat individual workplaces. Analysis of the data is awidely recognized method for discovering workplacesafety and health problems and for tracking progressin solving those problems.The records provide the base data for the BLSAnnual Survey of Occupational Injuries and Illnesses,the Nation’s primary source of occupational injuryand illness data.Question 0-2. What is the effect of workers’ compensationreports on the OSHA records?The purpose section of the rule includes a note tomake it clear that recording an injury or illness neitheraffects a person’s entitlement to workers’ compensationnor proves a violation of an OSHA rule.The rules for compensability under workers’ compensationdiffer from state to state and do not haveany effect on whether or not a case needs to berecorded on the OSHA 300 Log. Many cases will beOSHA recordable and compensable under workers’compensation. However, some cases will be compensablebut not OSHA recordable, and some caseswill be OSHA recordable but not compensable underworkers’ compensation.LETTERS OF INTERPRETATION: Section 1904.0Section 1904.0 PurposeThis section will be developed as letters of interpretation become available.2OSHA RECORDKEEPINGHANDBOOK

Section 1904.1Partial exemption for employerswith 10 or fewer employees(66 FR 6122, Jan. 19, 2001)REGULATION: Section 1904.1Subpart B – Scope (66 FR 6122, Jan. 19, 2001)§1904.1Note to Subpart B: All employers covered by the Occupational Safety and Health Act (OSH Act) are coveredby these Part 1904 regulations. However, most employers do not have to keep OSHA injury and illnessrecords unless OSHA or the Bureau of Labor Statistics (BLS) informs them in writing that they must keeprecords. For example, employers with 10 or fewer employees and business establishments in certain industryclassifications are partially exempt from keeping OSHA injury and illness records.Section 1904.1 Partial exemption for employerswith 10 or fewer employees(a) Basic requirement.(1) If your company had ten (10) or fewer employeesat all times during the last calendar year, you do notneed to keep OSHA injury and illness records unlessOSHA or the BLS informs you in writing that you mustkeep records under Section 1904.41 or Section 1904.42.However, as required by Section 1904.39, all employerscovered by the OSH Act must report to OSHA any workplaceincident that results in a fatality or the hospitalizationof three or more employees.(2) If your company had more than ten (10)employees at any time during the last calendar year,you must keep OSHA injury and illness recordsunless your establishment is classified as a partiallyexempt industry under Section 1904.2.(b) Implementation.(1) Is the partial exemption for size based on thesize of my entire company or on the size of an individualbusiness establishment?The partial exemption for size is based on thenumber of employees in the entire company.(2) How do I determine the size of my company tofind out if I qualify for the partial exemption for size?To determine if you are exempt because of size,you need to determine your company’s peak employmentduring the last calendar year. If you had nomore than 10 employees at any time in the last calendaryear, your company qualifies for the partialexemption for size.PREAMBLE DISCUSSION: Section 1904.1(66 FR 5935-5939, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.1 Partial exemption for employerswith 10 or fewer employeesThe Size-Based Exemption in the Former RuleThe original OSHA injury and illness recording andreporting rule issued in July 1971 required allemployers covered by the OSH Act to maintain injuryand illness records. In October 1972, an exemptionfrom most of the recordkeeping requirements wasput in place for employers with seven or feweremployees. In 1977, OSHA amended the rule toexempt employers with 10 or fewer employees, andthat exemption has continued in effect to this day….The Size-Based Exemption in the Final Rule…Under the final rule (and the former rule), anemployer in any industry who employed no morethan 10 employees at any time during the precedingcalendar year is not required to maintain OSHArecords of occupational illnesses and injuries duringthe current year unless requested to do so in writingby OSHA (under Section 1904.41) or the BLS (underSection 1904.42). If an employer employed 11 ormore people at a given time during the year, however,that employer is not eligible for the size-basedpartial exemption….OSHA RECORDKEEPINGHANDBOOK3

§1904.1Since publication of the recordkeeping proposal,OSHA has done considerable research into the issueof fatality, injury, and illness rates in small companies.The results of this research also point to underreporting,rather than safer workplaces, as a likelyreason for the lower-than-average injury and illnessnumbers reported by small employers. The mosttelling evidence that injury and illness underreportingis prevalent among small firms is the substantial discrepancybetween the fatality rates in these firms andtheir injury and illness rates.Most professionals agree that occupational fatalitydata are more reliable than occupational injury andillness data, primarily because fatalities are morelikely to be reported than injuries. The work-relatedBLS fatality data appear to confirm this belief, showingthat although businesses with fewer than 10employees account for only 4% of the total workforce,they account for 28% of occupational fatalities….... [U]nder the 10 or fewer employee partialexemption threshold, more than 80% of employers inOSHA’s jurisdiction are exempted from routinelykeeping records….After a review of the record and reconsiderationof this issue, OSHA agrees that there should be onlyone size exemption threshold across all industriesand finds that the threshold should be 10 or feweremployees….…[T]he final rule clarifies that the 10 or fewer sizeexemption is applicable only if the employer hadfewer than 11 employees at all times during the previouscalendar year. Thus, if an employer employs11 or more people at any given time during that year,the employer is not eligible for the small employerexemption in the following year. This total includesall workers employed by the business. All individualswho are “employees” under the OSH Act are countedin the total; the count includes all full time, part time,temporary, and seasonal employees. For businessesthat are sole proprietorships or partnerships, theowners and partners would not be consideredemployees and would not be counted. Similarly, forfamily farms, family members are not counted asemployees. However, in a corporation, corporate officerswho receive payment for their services are consideredemployees. [See Section 1904.31, CoveredEmployees.]Consistent with the former rule, the final ruleapplies the size exemption based on the total numberof employees in the firm, rather than the numberof employees at any particular location or establishment...becausethe resources available in a givenbusiness depend on the size of the firm as a whole,not on the size of individual establishments ownedby the firm. In addition, the analysis of injury recordsshould be of value to the firm as a whole, regardlessof the size of individual establishments. Further, anexemption based on individual establishments wouldbe difficult to administer, especially in cases wherean individual employee, such as a maintenanceworker, regularly reports to work at several establishments.FREQUENTLY ASKED QUESTIONS: Section 1904.1 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.1 Partial exemption for employers with 10 or fewer employeesThis section will be developed as questions and answers become available.LETTERS OF INTERPRETATION: Section 1904.1Section 1904.1 Partial exemption for employers with 10 or fewer employeesThis section will be developed as letters of interpretation become available.4OSHA RECORDKEEPINGHANDBOOK

Section 1904.2Partial exemption for establishmentsin certain industries(66 FR 6122, Jan. 19, 2001)REGULATION: Section 1904.2Subpart B – Scope (66 FR 6122, Jan. 19, 2001)Section 1904.2 Partial exemption for establishmentsin certain industries(a) Basic requirement.(1) If your business establishment is classified in aspecific low hazard retail, service, finance, insuranceor real estate industry listed in Appendix A to thisSubpart B, you do not need to keep OSHA injury andillness records unless the government asks you tokeep the records under Section 1904.41 or Section1904.42. However, all employers must report toOSHA any workplace incident that results in a fatalityor the hospitalization of three or more employees(see Section 1904.39).(2) If one or more of your company’s establishmentsare classified in a non-exempt industry, youmust keep OSHA injury and illness records for all ofsuch establishments unless your company is partiallyexempted because of size under Section 1904.1.(b) Implementation.(1) Does the partial industry classification exemptionapply only to business establishments in theretail, services, finance, insurance or real estateindustries (SICs 52-89)?Yes, business establishments classified in agriculture;mining; construction; manufacturing; transportation;communication; electric, gas and sanitaryservices; or wholesale trade are not eligible for thepartial industry classification exemption.(2) Is the partial industry classification exemptionbased on the industry classification of my entire companyor on the classification of individual businessestablishments operated by my company?The partial industry classification exemptionapplies to individual business establishments. If acompany has several business establishmentsengaged in different classes of business activities,some of the company’s establishments may berequired to keep records, while others may be exempt.(3) How do I determine the Standard IndustrialClassification code for my company or for individualestablishments?You determine your Standard IndustrialClassification (SIC) code by using the StandardIndustrial Classification Manual, Executive Office ofthe President, Office of Management and Budget.You may contact your nearest OSHA office or Stateagency for help in determining your SIC.Non-Mandatory Appendix A to Subpart B –Partially Exempt IndustriesEmployers are not required to keep OSHA injuryand illness records for any establishment classified inthe following Standard Industrial Classification (SIC)codes, unless they are asked in writing to do so byOSHA, the Bureau of Labor Statistics (BLS), or a stateagency operating under the authority of OSHA or theBLS. All employers, including those partially exemptedby reason of company size or industry classification,must report to OSHA any workplace incidentthat results in a fatality or the hospitalization of threeor more employees (see Section 1904.39).§1904.2Appendix A -- Partially Exempt IndustriesSIC code Industry descriptionSIC code Industry description525 Hardware Stores573 Radio, Television, & Computer Stores542 Meat and Fish Markets58 Eating and Drinking Places544 Candy, Nut, and Confectionery Stores591 Drug Stores and Proprietary Stores545 Dairy Products Stores592 Liquor Stores546 Retail Bakeries594 Miscellaneous Shopping Goods Stores549 Miscellaneous Food Stores599 Retail Stores, Not Elsewhere Classified551 New and Used Car Dealers60 Depository Institutions (banks & savings552 Used Car Dealersinstitutions)554 Gasoline Service Stations61 Nondepository557 Motorcycle Dealers62 Security and Commodity Brokers56 Apparel and Accessory Stores63 Insurance CarriersOSHA RECORDKEEPINGHANDBOOK5

§1904.2SIC code Industry description64 Insurance Agents, Brokers, & Services653 Real Estate Agents and Managers654 Title Abstract Offices67 Holding and Other Investment Offices722 Photographic Studios, Portrait723 Beauty Shops724 Barber Shops725 Shoe Repair and Shoeshine Parlors726 Funeral Service and Crematories729 Miscellaneous Personal Services731 Advertising Services732 Credit Reporting and Collection Services733 Mailing, Reproduction, & StenographicServices737 Computer and Data Processing Services738 Miscellaneous Business Services764 Reupholstery and Furniture Repair78 Motion Picture791 Dance Studios, Schools, and Halls792 Producers, Orchestras, EntertainersSIC code Industry description793 Bowling Centers801 Offices & Clinics Of Medical Doctors802 Offices and Clinics Of Dentists803 Offices Of Osteopathic804 Offices Of Other Health Practitioners807 Medical and Dental Laboratories809 Health and Allied Services, Not ElsewhereClassified81 Legal Services82 Educational Services (schools, colleges,universities and libraries)832 Individual and Family Services835 Child Day Care Services839 Social Services, Not Elsewhere Classified841 Museums and Art Galleries86 Membership Organizations87 Engineering, Accounting, Research,Management, and Related Services899 Services, not elsewhere classifiedPREAMBLE DISCUSSION: Section 1904.2(66 FR 5939-5945, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.2 Partial exemption for establishmentsin certain industriesSection 1904.2 of the final rule partially exemptsemployers with establishments classified in certainlower-hazard industries. The final rule updates theformer rule’s listing of partially exempted lower-hazardindustries. Lower-hazard industries are thoseStandard Industrial Classification (SIC) code industrieswithin SICs 52-89 that have an average DaysAway, Restricted, or Transferred (DART) rate at orbelow 75% of the national average DART rate. Theformer rule also contained such a list based on datafrom 1978-1980. The final rule’s list differs from thatof the former rule in two respects: (1) the hazardinformation supporting the final rule’s lower-hazardindustry exemptions is based on the most recentthree years of BLS statistics (1996, 1997, 1998), and(2) the exception is calculated at the 3-digit ratherthan 2-digit level.The changes in the final rule’s industry exemptionsare designed to require more employers inhigher-hazard industries to keep records all of thetime and to exempt employers in certain lower-hazardindustries from keeping OSHA injury and illnessrecords routinely. For example, compared with theformer rule, the final rule requires many employersin the 3-digit industries within retail and service sectorindustries that have higher rates of occupationalinjuries and illnesses to keep these records butexempts employers in 3-digit industries within thoseindustries that report a lower rate of occupationalinjury and illness….You determine your Standard IndustrialClassification (SIC) code by using the StandardIndustrial Classification Manual, Executive Office ofthe President, Office of Management and Budget.You may contact your nearest OSHA office or Stateagency for help in determining your SIC.Employers with establishments in those industrysectors shown in Appendix A are not required routinelyto keep OSHA records for their establishments.They must, however, keep records if requested to doso by the Bureau of Labor Statistics in connectionwith its Annual Survey (section 1904.42) or by OSHAin connection with its Data Initiative (section 1904.41).In addition, all employers covered by the OSH Actmust report a work-related fatality, or an accidentthat results in the hospitalization of three or more6OSHA RECORDKEEPINGHANDBOOK

employees, to OSHA within 8 hours (section1904.39).In 1982, OSHA exempted establishments in anumber of service, finance and retail industries fromthe duty to regularly maintain the OSHA Log andIncident Report (47 FR 57699 (Dec. 28, 1982)). Thisindustry exemption to the Part 1904 rule was intendedto “reduce paperwork burden on employers withoutcompromising worker safety and health.” …Although the 1982 Federal Register notice discussedthe possibility of revising the exempt industrylist on a routine basis, the list of partially exemptindustries compiled in 1982 has remained unchangeduntil this revision of the Part 1904 rule…....[N]on-mandatory Appendix A of the final ruleidentifies industries for exemption at the 3-digit SICcode level. Although this approach does make the listof exempt industries longer and more detailed, italso targets the exemption more effectively than didthe former rule’s list. For example, the final rule doesnot exempt firms in many of the more hazardous 3-digit SIC industries that are embedded within lowerrate 2-digit SIC industries. It does, however, exemptfirms in relatively low-hazard 3-digit SIC industries,even though they are classified in higher hazard 2-digit SIC industries. Where Days Away, Restricted, orTransferred (DART, formerly LWDI) rate calculationsexempt all of the 3-digit SIC industries within a given2-digit industry, the exempt industry list in AppendixA displays only the 2-digit SIC classification. Thisapproach merely provides a shorter, simpler list.For multi-establishment firms, the industryexemption is based on the SIC code of each establishment,rather than the industrial classification of afirm as a whole. For example, some larger corporationshave establishments that engage in differentbusiness activities. Where this is the case, eachestablishment could fall into a different SIC code,based on its business activity. The StandardIndustrial Classification manual states that the establishment,rather than the firm, is the appropriate unitfor determining the SIC code. Thus, depending onthe SIC code of the establishment, one establishmentof a firm may be exempt from routine recordkeepingunder Part 1904, while another establishment in thesame company may not be exempt….OSHA has evaluated other approaches but hasdecided that the 3-digit DART rate method is bothsimpler and more equitable than the former 2-digitmethod. By exempting lower-hazard industry sectorswithin SICs 52-89, OSHA hopes both to concentrateits recordkeeping requirements in sectors that willprovide the most useful data and to minimize paperworkburden. No exemption method is perfect: anymethod that exempts broad classes of employersfrom recordkeeping obligations will exempt somemore hazardous workplaces and cover some lesshazardous workplaces. OSHA has attempted to minimizeboth of these problems by using the most currentinjury and illness statistics available, and byapplying them to a more detailed industry level withinthe retail, financial and service sectors than wasformerly the case. OSHA has also limited the scopeof the exemptions by using an exemption thresholdthat is well below the national average, includingonly those industries that have average DART ratesthat are at or below 75% of the national averageDART rate. The rule also limits the exempt industriesto the retail, financial and service sectors, which aregenerally less hazardous than the manufacturingindustry sector….The final rule makes clear that, when a “leased”or “temporary” employee is supervised on a day-todaybasis by the using firm, the using firm mustenter that employee’s injuries and illnesses on theusing firm’s establishment Log and other records.Injuries and illnesses occurring to a given employeeshould only be recorded once, either by the temporarystaffing firm or the using firm, depending onwhich firm actually supervises the temporaryemployees on a day-to-day basis. (see the discussionfor Section 1904.31, Covered employees, for an indepthexplanation of these requirements.)…After a review of the recent BLS data, OSHA’s ownexperience, and the record of this rulemaking, OSHAhas decided that it is appropriate to require firms inindustries within the SIC 01 through 51 codes to complywith OSHA’s requirements to keep records. Thus,the final rule, like the proposed rule and the rule publishedin 1982, does not exempt firms with more than10 employees in the industry divisions of agriculture,mining, construction, manufacturing, wholesaletrade, transportation and public utilities (SICs 01-52)from routine recordkeeping.Although OSHA no longer restricts its inspectiontargeting schemes to employers in these SICs, theseindustries have traditionally been, and continue tobe, the focus of many of the Agency’s enforcementprograms. OSHA believes that it is important for largeremployers (i.e., those with more than 10 employees)in these industries to continue to collect andmaintain injury and illness records for use by theemployer, employees and the government. As notedin the comments there is a wide variation in injury/illnessrates among establishments classified in theseindustries. Further, as a whole, these industries con-§1904.2OSHA RECORDKEEPINGHANDBOOK7

§1904.2tinue to have injury and illness rates that are generallyhigher than the private sector average and willthus benefit from the information that OSHA-mandatedrecords can provide about safety and health conditionsin the workplace. In 1998, the lost workdayinjury and illness rate for the entire private sectorwas 3.1. As can be seen in the following table of lostworkday injury and illness rates by industry division,all of the covered divisions exceeded 75% of thenational average LWDI rate (2.325) for the private sectoras a whole, while the exempted industry divisionshad substantially lower rates.Industry Sector1998 Lost WorkdayInjury and Illness RateAgriculture, forestry and fishing (SIC 01) 3.9Mining (SIC 10-14) 2.9Construction (SIC 15-17) 4.0Manufacturing (SIC 20-39) 4.7Transportation, communications, electric,gas and sanitary services (SIC 40-49) 4.3Wholesale trade (SIC 50 & 51) 3.3Retail trade (SIC 52-59) 2.7Finance, Insurance & Real Estate(SIC 60-67) 0.7Services (SIC 70-87) 2.4(U.S. Department of Labor Press ReleaseUSDL 98-494, December 16, 1999)…The Agency finds that continuing, and improvingon, the Agency’s longstanding approach of partiallyexempting those industries in SIC codes 52-89that have DART rates, based on 3 years of BLS data,below 75% of the private-sector average strikes theappropriate balance between the need for injury andillness information on the one hand, and the paperworkburdens created by recording obligations, onthe other. The BLS Annual Survey will, of course,continue to provide national job-related statistics forall industries and all sizes of businesses. As it hasdone in the past, the BLS will sample employers inthe partially exempt industries and ask each sampledemployer to keep OSHA records for one year. In thefollowing year, BLS will collect the records to generateestimates of occupational injury and illness forfirms in the partially exempt industries and size classes,and combine those data with data for other industriesto generate estimates for the entire U.S. privatesector. These procedures ensure the integrity of thenational statistics on occupational safety and health.The list of partially exempted industry sectors inthis rule is based on the current (1987) revision of theSIC manual. The Office of Management and Budget(OMB) is charged with maintaining and revising thesystem of industrial classification that will replace theSIC. The new system is used by U.S. statistical agencies(including the BLS). Under the direction of OMB,the U.S. government has adopted a new, comprehensivesystem of industrial classification that willreplace the SIC. The new system is called the NorthAmerican Industrial Classification System (NAICS).NAICS will harmonize the U.S. classification systemwith those of Canada and Mexico and make it easierto compare various economic and labor statisticsamong the three countries….Although the NAIC industry classification systemhas been formally adopted by the United States, theindividual U.S. statistical agencies (including the BLS)are still converting their statistical systems to reflectthe new codes and have not begun to publish statisticsusing the new industry classifications. The newsystem will be phased into the nation’s various statisticalsystems over the next several years. The BLSdoes not expect to publish the first occupationalinjury and illness rates under the new system untilthe re-ference year 2003. Given the lag time betweenthe end of the year and the publication of the statistics,data for a full three-year period will not be availablebefore December of 2006.Because data to revise the Part 1904 industryexemption based on the NAIC system will not beavailable for another five years, OSHA has decided toupdate the industry exemption list now based on themost recent SIC-based information available fromBLS for the years 1996, 1997 and 1998. OSHA willconduct a future rulemaking to update the industryclassifications to the NAIC system when BLS publishesinjury and illness data that can be used to makeappropriate industry-by-industry decisions….OSHA agrees with those commenters whofavored regular updating of the SIC code exemptionlist. For the list to focus Agency resources most effectivelyon the most hazardous industries, it must beup-to-date. Industries that are successful in loweringtheir rates to levels below the exemption thresholdshould be exempted, while those whose rates risesufficiently to exceed the criterion should receiveadditional attention. Unfortunately, the change inindustry coding systems from the Standard IndustrialClassification (SIC) system to the North AmericanIndustry Classification (NAIC) system will require afuture rulemaking to shift to that system. Therefore,there is no value in adding an updating mechanismat this time. The automatic updating issue will beaddressed in the same future rulemaking thataddresses the NAIC system conversion.8OSHA RECORDKEEPINGHANDBOOK

Partial Exemptions for Employers Under theJurisdiction of OSHA-Approved State OccupationalSafety and Health Plans…For those States with OSHA-approved State plans,the state is generally required to adopt Federal OSHArules, or a State rule that is at least as effective as theFederal OSHA rule. States with approved plans donot need to exempt employers from recordkeeping,either by employer size or by industry classification,as the final Federal OSHA rule does, although theymay choose to do so. For example, States withapproved plans may require records from a wideruniverse of employers than Federal OSHA does.These States cannot exempt more industries oremployers than Federal OSHA does, however,because doing so would result in a State rule that isnot as effective as the Federal rule. A larger discussionof the effect on the State plans can be found inSection VIII of this preamble, State Plans.FREQUENTLY ASKED QUESTIONS: Section 1904.2 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.2 Partial exemption for establishments in certain industries§1904.2Question 2-1. How can I get help to find my SIC Codeand determine if I’m partially exempt from therecordkeeping rule?You can access the statistics section of OSHA’s internethome page, at http://www.osha.gov/oshstats/. Goto the website and choose SIC Manual and follow thedirections. If you still cannot determine your SICcode, you can call an OSHA area office, or, if you arein a state with an OSHA-approved state plan, callyour State Plan office. See the OSHA Office Directory.Question 2-2. Do States with OSHA-approved Stateplans have the same industry exemptions as FederalOSHA?States with OSHA-approved plans may requireemployers to keep records for the State, even thoughthose employers are within an industry exempted bythe Federal rule.Question 2-3. Do professional sports teams qualifyfor the partial industry exemption in section 1904.2?No. Only those industry classifications listed inAppendix A to Subpart B qualify for the partial industryexemption in section 1904.2. Professional sportsteams are classified under Standard IndustrialClassification (SIC) code 794, which is not one of thelisted exempt classifications.LETTERS OF INTERPRETATION: Section 1904.2Section 1904.2 Partial exemption for establishments in certain industriesThis section will be developed as letters of interpretation become available.OSHA RECORDKEEPINGHANDBOOK9

Section 1904.3Keeping records for more thanone agency(66 FR 6123, Jan. 19, 2001)REGULATION: Section 1904.3Subpart B – Scope (66 FR 6122, Jan. 19, 2001)§1904.3Section 1904.3 Keeping records for more thanone agencyIf you create records to comply with another governmentagency’s injury and illness recordkeepingrequirements, OSHA will consider those records asmeeting OSHA’s Part 1904 recordkeeping requirementsif OSHA accepts the other agency’s recordsPREAMBLE DISCUSSION: Section 1904.3(66 FR 5945, Jan. 19, 2001)under a memorandum of understanding with thatagency, or if the other agency’s records contain thesame information as this Part 1904 requires you torecord. You may contact your nearest OSHA office orState agency for help in determining whether yourrecords meet OSHA’s requirements.The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.3 Recordkeeping under the requirementsof other Federal agenciesSection 1904.3 of the final rule provides guidance foremployers who are subject to the occupational injuryand illness recording and reporting requirements ofother Federal agencies. Several other Federal agencieshave similar requirements, such as the MineSafety and Health Administration (MSHA), theDepartment of Energy (DOE), and the FederalRailroad Administration (FRA). The final rule at section1904.3 tells the employer that OSHA will acceptthese records in place of the employer’s Part 1904records under two circumstances: (1) if OSHA hasentered into a memorandum of understanding(MOU) with that agency that specifically accepts theother agency’s records, the employer may use themin place of the OSHA records, or (2) if the otheragency’s records include the same informationrequired by Part 1904, OSHA would consider theman acceptable substitute.FREQUENTLY ASKED QUESTIONS: Section 1904.3 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.3 Keeping records for more than one agencyThis section will be developed as questions and answers become available.LETTERS OF INTERPRETATION: Section 1904.3Section 1904.3 Keeping records for more than one agencyThis section will be developed as letters of interpretation become available.10OSHA RECORDKEEPINGHANDBOOK

Section 1904.4Recording criteria(66 FR 6123, Jan. 19, 2001)REGULATION: Section 1904.4Subpart C – Recordkeeping Forms and Recording Criteria (66 FR 6123, Jan. 19, 2001)Note to Subpart C: This Subpart describes the work-related injuries and illnesses that an employer mustenter into the OSHA records and explains the OSHA forms that employers must use to record work-relatedfatalities, injuries, and illnesses.Section 1904.4 Recording criteria(a) Basic requirement.Each employer required by this Part to keeprecords of fatalities, injuries, and illnesses mustrecord each fatality, injury and illness that:(1) Is work-related; and(2) Is a new case; and(3) Meets one or more of the general recordingcriteria of Section 1904.7 or the application to specificcases of Section 1904.8 through Section 1904.11.(b) Implementation.(1) What sections of this rule describe recording criteriafor recording work-related injuries and illnesses?The table below indicates which sections of therule address each topic.(i) Determination of work-relatedness. See Section1904.5.(ii) Determination of a new case. See Section1904.6.(iii) General recording criteria. See Section 1904.7.(iv) Additional criteria. (Needlestick and sharpsinjury cases, tuberculosis cases, hearing losscases, medical removal cases, and musculoskeletaldisorder cases). See Section 1904.8 throughSection 1904.11.(2) How do I decide whether a particular injury orillness is recordable?The decision tree for recording work-relatedinjuries and illnesses below shows the steps involvedin making this determination.§1904.4NONODid the employee experience an injury or illness?YESIs the injury or illness work-related?YESIs the injury or illness a new case?YESNOUpdate the previouslyrecorded injury or illnessentry if necessary.NODoes the injury or illness meet thegeneral recorded criteria or theapplication to specific cases?YESDo not record the injury or illness.Record the injury or illness.OSHA RECORDKEEPINGHANDBOOK11

PREAMBLE DISCUSSION: Section 1904.4(66 FR 5945-5946, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).§1904.4Section 1904.4 Recording CriteriaSection 1904.4 of the final rule contains provisionsmandating the recording of work-related injuries andillnesses that must be entered on the OSHA 300(Log) and 301 (Incident Report) forms. It sets out therecording requirements that employers are requiredto follow in recording cases.Paragraph 1904.4(a) of the final rule mandates thateach employer who is required by OSHA to keeprecords must record each fatality, injury or illnessthat is work-related, is a new case and not a continuationof an old case, and meets one or more of thegeneral recording criteria in section 1904.7 or theadditional criteria for specific cases found in sections1904.8 through 1904.11. Paragraph (b) contains provisionsimplementing this basic requirement.Paragraph 1904.4(b)(1) contains a table that pointsemployers and their recordkeepers to the varioussections of the rule that determine which work-relatedinjuries and illnesses are to be recorded. Thesesections lay out the requirements for determiningwhether an injury or illness is work-related, if it is anew case, and if it meets one or more of the generalrecording criteria. In addition, the table contains arow addressing the application of these and additionalcriteria to specific kinds of cases (needlestick andsharps injury cases, tuberculosis cases, hearing losscases, medical removal cases, and musculoskeletaldisorder cases). The table in paragraph 1904.4(b)(1) isintended to guide employers through the recordingprocess and to act as a table of contents to the sectionsof Subpart C.Paragraph (b)(2) is a decision tree, or flowchart,that shows the steps involved in determiningwhether or not a particular injury or illness case mustbe recorded on the OSHA forms. It essentiallyreflects the same information as is in the table inparagraph 1904.4(b)(1), except that it presents thisinformation graphically.FREQUENTLY ASKED QUESTIONS: Section 1904.4 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.4 Recording criteriaQuestion 4-1. Does an employee report of an injuryor illness establish the existence of the injury or illnessfor recordkeeping purposes?No. In determining whether a case is recordable, theemployer must first decide whether an injury or illness,as defined by the rule, has occurred. If theemployer is uncertain about whether an injury or illnesshas occurred, the employer may refer theemployee to a physician or other health care professionalfor evaluation and may consider the healthcare professional’s opinion in determining whetheran injury or illness exists. [Note: If a physician orother licensed health care professional diagnoses asignificant injury or illness within the meaning ofSection1904.7(b)(7) and the employer determines thatthe case is work-related, the case must be recorded.]LETTERS OF INTERPRETATION: Section 1904.4Section 1904.4 Recording criteriaThis section will be developed as letters of interpretation become available.12OSHA RECORDKEEPINGHANDBOOK

Section 1904.5Determination of work-relatedness(66 FR 6123, Jan. 19, 2001)REGULATION: Section 1904.5Subpart C – Recordkeeping Forms and Recording Criteria (66 FR 6123, Jan. 19, 2001)Note to Subpart C: This Subpart describes the work-related injuries and illnesses that an employer mustenter into the OSHA records and explains the OSHA forms that employers must use to record work-relatedfatalities, injuries, and illnesses.1904.5(b)(2) You are not required to record injuries and illnesses if ...Section 1904.5 Determination of work-relatedness(a) Basic requirement.You must consider an injury or illness to be workrelatedif an event or exposure in the work environmenteither caused or contributed to the resulting conditionor significantly aggravated a pre-existing injury or illness.Work-relatedness is presumed for injuries and illnessesresulting from events or exposures occurring inthe work environment, unless an exception in Section1904.5(b)(2) specifically applies.(b) Implementation.(1) What is the “work environment”?OSHA defines the work environment as “the establishmentand other locations where one or moreemployees are working or are present as a conditionof their employment. The work environment includesnot only physical locations, but also the equipmentor materials used by the employee during the courseof his or her work.”(2) Are there situations where an injury or illnessoccurs in the work environment and is not consideredwork-related?Yes, an injury or illness occurring in the work environmentthat falls under one of the following exceptionsis not work-related, and therefore is not recordable.§1904.5(i)(ii)(iii)(iv)At the time of the injury or illness, the employee was present in the work environment as amember of the general public rather than as an employee.The injury or illness involves signs or symptoms that surface at work but result solely froma non-work-related event or exposure that occurs outside the work environment.The injury or illness results solely from voluntary participation in a wellness program or ina medical, fitness, or recreational activity such as blood donation, physical examination,flu shot, exercise class, racquetball, or baseball.The injury or illness is solely the result of an employee eating, drinking, or preparing food ordrink for personal consumption (whether bought on the employer’s premises or brought in).For example, if the employee is injured by choking on a sandwich while in the employer’sestablishment, the case would not be considered work-related.Note: If the employee is made ill by ingesting food contaminated by workplace contaminants(such as lead), or gets food poisoning from food supplied by the employer, the case would beconsidered work-related.(v)(vi)(vii)The injury or illness is solely the result of an employee doing personal tasks (unrelated to theiremployment) at the establishment outside of the employee’s assigned working hours.The injury or illness is solely the result of personal grooming, self medication for a non-workrelatedcondition, or is intentionally self-inflicted.The injury or illness is caused by a motor vehicle accident and occurs on a company parking lot orcompany access road while the employee is commuting to or from work.OSHA RECORDKEEPINGHANDBOOK13

(viii)(ix)The illness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucellosis,hepatitis A, or plague are considered work-related if the employee is infected at work).The illness is a mental illness. Mental illness will not be considered work-related unless theemployee voluntarily provides the employer with an opinion from a physician or other licensedhealth care professional with appropriate training and experience (psychiatrist, psychologist,psychiatric nurse practitioner, etc.) stating that the employee has a mental illness that is workrelated.§1904.5(3) How do I handle a case if it is not obviouswhether the precipitating event or exposure occurredin the work environment or occurred away from work?In these situations, you must evaluate the employee’swork duties and environment to decide whetheror not one or more events or exposures in the workenvironment either caused or contributed to theresulting condition or significantly aggravated a preexistingcondition.(4) How do I know if an event or exposure in thework environment “significantly aggravated” a preexistinginjury or illness?A preexisting injury or illness has been significantlyaggravated, for purposes of OSHA injury and illnessrecordkeeping, when an event or exposure inthe work environment results in any of the following:(i) Death, provided that the preexisting injury orillness would likely not have resulted in death butfor the occupational event or exposure.(ii) Loss of consciousness, provided that the preexistinginjury or illness would likely not haveresulted in loss of consciousness but for the occupationalevent or exposure.(iii) One or more days away from work, or days ofrestricted work, or days of job transfer that otherwisewould not have occurred but for the occupationalevent or exposure.(iv) Medical treatment in a case where no medicaltreatment was needed for the injury or illnessbefore the workplace event or exposure, or achange in medical treatment was necessitated bythe workplace event or exposure.(5) Which injuries and illnesses are consideredpre-existing conditions?An injury or illness is a preexisting condition if itresulted solely from a non-work-related event orexposure that occurred outside the work environment.(6) How do I decide whether an injury or illness iswork-related if the employee is on travel status at thetime the injury or illness occurs?Injuries and illnesses that occur while an employeeis on travel status are work-related if, at the timeof the injury or illness, the employee was engaged inwork activities “in the interest of the employer.”Examples of such activities include travel to and fromcustomer contacts, conducting job tasks, and entertainingor being entertained to transact, discuss, orpromote business (work-related entertainmentincludes only entertainment activities being engagedin at the direction of the employer).Injuries or illnesses that occur when the employeeis on travel status do not have to be recorded if theymeet one of the exceptions listed below.1904.5(b)(6) If the employee has...You may use the following to determine if an injury or illness is work-related(i) checked into a hotel When a traveling employee checks into a hotel, motel, or into a other tempoormotel for one or rary residence, he or she establishes a “home away from home.” You mustmore days.evaluate the employee’s activities after he or she checks into the hotel, motel,or other temporary residence for their work-relatedness in the same manneras you evaluate the activities of a non-traveling employee. When the employeechecks into the temporary residence, he or she is considered to have left thework environment. When the employee begins work each day, he or shere-enters the work environment. If the employee has established a “homeaway from home” and is reporting to a fixed worksite each day, you also donot consider injuries or illnesses work-related if they occur while the employeeis commuting between the temporary residence and the job location.( ii) taken a detour for Injuries or illnesses are not considered work-related if they occur while thepersonal reasons. employee is on a personal detour from a reasonably direct route of travel(e.g., has taken a side trip for personal reasons).14OSHA RECORDKEEPINGHANDBOOK

(b)(7) How do I decide if a case is work-relatedwhen the employee is working at home?Injuries and illnesses that occur while an employeeis working at home, including work in a homeoffice, will be considered work-related if the injury orillness occurs while the employee is performing workfor pay or compensation in the home, and the injuryor illness is directly related to the performance ofwork rather than to the general home environment orsetting. For example, if an employee drops a box ofwork documents and injures his or her foot, the caseis considered work-related. If an employee’s fingernailis punctured by a needle from a sewing machineused to perform garment work at home, becomesinfected and requires medical treatment, the injury isconsidered work-related. If an employee is injuredbecause he or she trips on the family dog while rushingto answer a work phone call, the case is not consideredwork-related. If an employee working athome is electrocuted because of faulty home wiring,the injury is not considered work-related.PREAMBLE DISCUSSION: Section 1904.5(66 FR 5946-5962, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.5 Determination of work-relatednessThis section of the final rule sets out the requirementsemployers must follow in determiningwhether a given injury or illness is work-related.Paragraph 1904.5(a) states that an injury or illnessmust be considered work-related if an event or exposurein the work environment caused or contributedto the injury or illness or significantly aggravated apre-existing injury or illness. It stipulates that, forOSHA recordkeeping purposes, work relationship ispresumed for such injuries and illnesses unless anexception listed in paragraph 1904.5(b)(2) specificallyapplies.Implementation requirements are set forth inparagraph (b) of the final rule. Paragraph (b)(1)defines “work environment” for recordkeeping purposesand makes clear that the work environmentincludes the physical locations where employees areworking as well as the equipment and materials usedby the employee to perform work.Paragraph (b)(2) lists the exceptions to the presumptionof work-relatedness permitted by the finalrule; cases meeting the conditions of any of the listedexceptions are not considered work-related and aretherefore not recordable in the OSHA recordkeepingsystem.This section of the preamble first explains OSHA’sreasoning on the issue of work relationship, then discussesthe exceptions to the general presumptionand the comments received on the exceptions proposed,and then presents OSHA’s rationale for includingparagraphs (b)(3) through (b)(7) of the final rule,and the record evidence pertaining to each.Section 8(c)(2) of the OSH Act directs theSecretary to issue regulations requiring employers torecord “work-related” injuries and illnesses. It isimplicit in this wording that there must be a causalconnection between the employment and the injuryor illness before the case is recordable. For mosttypes of industrial accidents involving traumaticinjuries, such as amputations, fractures, burns andelectrocutions, a causal connection is easily determinedbecause the injury arises from forces, equipment,activities, or conditions inherent in the employmentenvironment. Thus, there is general agreementthat when an employee is struck by or caught inmoving machinery, or is crushed in a constructioncave-in, the case is work-related. It is also acceptedthat a variety of illnesses are associated with exposureto toxic substances, such as lead and cadmium,used in industrial processes. Accordingly, there is littlequestion that cases of lead or cadmium poisoningare work-related if the employee is exposed to thesesubstances at work.On the other hand, a number of injuries and illnessesthat occur, or manifest themselves, at workare caused by a combination of occupational factors,such as performing job-related bending and liftingmotions, and factors personal to the employee, suchas the effects of a pre-existing medical condition. Inmany such cases, it is likely that occupational factorshave played a tangible role in causing the injury orillness, but one that cannot be readily quantified as“significant” or “predominant” in comparison withthe personal factors involved.Injuries and illnesses also occur at work that donot have a clear connection to a specific work activity,condition, or substance that is peculiar to the§1904.5OSHA RECORDKEEPINGHANDBOOK15

§1904.5employment environment. For example, an employeemay trip for no apparent reason while walkingacross a level factory floor; be sexually assaulted bya co-worker; or be injured accidentally as a result ofan act of violence perpetrated by one co-workeragainst a third party. In these and similar cases, theemployee’s job-related tasks or exposures did notcreate or contribute to the risk that such an injurywould occur. Instead, a causal connection is establishedby the fact that the injury would not haveoccurred but for the conditions and obligations ofemployment that placed the employee in the positionin which he or she was injured or made ill.The theory of causation OSHA should requireemployers to use in determining the work-relationshipof injuries and illnesses was perhaps the mostimportant issue raised in this rulemaking. Put simply,the issue is essentially whether OSHA should viewcases as being work-related under a “geographic” or“positional” theory of causation, or should adopt amore restrictive test requiring that the occupationalcause be quantified as “predominant,” or “significant,”or that the injury or illness result from activitiesuniquely occupational in nature….The final rule’s test for work-relationship and itssimilarity to the former and proposed rules. -- Thefinal rule requires that employers consider an injuryor illness to be “work-related” if an event or exposurein the work environment either caused or contributedto the resulting condition or significantlyaggravated a pre-existing injury or illness. Workrelatedness is presumed for injuries and illnessesresulting from events or exposures occurring in thework environment, unless an exception in Section1904.5(b)(2) specifically applies.Under paragraph 1904.5(b)(1), the “work environment”means “the establishment and other locationswhere one or more employees are working or arepresent as a condition of their employment. Thework environment includes not only physical locations,but also equipment or materials used by theemployee during the course of his or her work.” …OSHA’s Reasons for Rejecting the Alternative Testsfor Work-RelationshipOSHA has given careful consideration to all of thecomments and testimony received in this rulemakingand has decided to continue to rely in the final ruleon the Agency’s longstanding definition of work-relationship,with one modification. That modification isthe addition of the word “significantly” before“aggravation” in the definition of work-relatednessset forth in final rule section 1904.5. The relevant portionof the section now states “an injury or illness isto be considered work-related if an event or exposurein the work environment either caused or contributedto the injury or illness or significantly aggravated apre-existing injury or illness” (emphasis added).In the final rule, OSHA has restated the presumptionof work-relationship to clarify that it includes anynon-minor injury or illness occurring as a result of anevent or exposure in the work environment, unlessan exception in paragraph 1904.5(b)(2) specificallyapplies.OSHA believes that the final rule’s approach ofrelying on the geographic presumption, with a limitednumber of exceptions, is more appropriate thanthe alternative approaches, for the following reasons.The Geographic Presumption Is Supported bythe StatuteOne important distinction between the geographictest for causation and the alternative causation testsis that the geographic test treats a case as work-relatedif it results in whole or in part from an event orexposure occurring in the work environment, whilethe alternative tests would only cover cases in whichthe employer can determine the degree to whichwork factors played a causal role. Reliance on thegeographic presumption thus covers cases in whichan event in the work environment is believed likely tobe a causal factor in an injury or illness but the effectof work cannot be quantified. It also covers cases inwhich the injury or illness is not caused by uniquelyoccupational activities or processes. These casesmay arise, for example, when: (a) an accident at workresults in an injury, but the cause of the accident cannotbe determined; (b) an injury or illness resultsfrom an event that occurs at work but is not causedby an activity peculiar to work, such as a randomassault or an instance of horseplay; (c) an injury orillness results from a number of factors, includingboth occupational and personal causes, and the relativecontribution of the occupational factor cannot bereadily measured; or (d) a pre-existing injury or illnessis significantly aggravated by an event or exposureat work….OSHA believes that the views … in support of theproposal’s alternative tests for work-relationshipreflect too narrow a reading of the purposes servedby the OSHA injury and illness records. Certainly, oneimportant purpose for recordkeeping requirements isto enable employers, employees, and OSHA to identifyhazards that can be prevented by compliancewith existing standards or recognized safety practices.However, the records serve other purposes as16OSHA RECORDKEEPINGHANDBOOK

well, including providing information for future scientificresearch on the nature of causal connectionsbetween the work environment and the injuries andillnesses sustained by employees….As discussed in the Legal Authority section, thesepurposes militate in favor of a general presumptionof work-relationship for injuries and illnesses thatresult from events or exposures occurring in thework environment, with exceptions for specific typesof cases that may safely be excluded without significantlyimpairing the usefulness of the national jobrelatedinjury and illness database.At the same time, OSHA is sensitive to the concernsof some commenters that the injury and illnessrecords are perceived as a measure of the effectivenessof the employer’s compliance with the Act andOSHA standards. OSHA emphasizes that the recordingof an injury or illness on the Log does not meanthat a violation has occurred. The explanatory materialsaccompanying the revised OSHA Forms 300 and301 contain the following statement emphasizing thispoint: “Cases listed on the Log of Work-RelatedInjuries and Illnesses are not necessarily eligible forWorkers Compensation or other insurance benefits.Listing a case on the Log does not mean that theemployer or worker was at fault or that an OSHAstandard was violated.”...Based on a review of the record, OSHA agreeswith those commenters who supported a continuationof the Agency’s prior practice with regard toreliance on the geographic presumption for determinationsof work-relatedness. OSHA finds that thisapproach, which includes all cases with a tangibleconnection with work, better serves the purposes ofrecordkeeping. Accordingly, the final rule relies onthe geographic presumption, with a few limitedexceptions, as the recordkeeping system’s test forwork-relationship.Who Makes the Determination?…OSHA has concluded that requiring employers torely on a health care professional for the determinationof the work-relatedness of occupational injuriesand illnesses would be burdensome, impractical, andunnecessary. Small employers, in particular, wouldbe burdened by such a provision. Further, if the professionalis not familiar with the injured worker’s jobduties and work environment, he or she will not havesufficient information to make a decision about thework-relatedness of the case. OSHA also does notagree that health care professional involvement isnecessary in the overwhelming majority of cases.Employers have been making work-relatednessdeterminations for more than 20 years and have performedthis responsibility well in that time. This doesnot mean that employers may not, if they choose,seek the advice of a physician or other licensedhealth care professional to help them understand thelink between workplace factors and injuries and illnessesin particular cases; it simply means thatOSHA does not believe that most employers willneed to avail themselves of the services of such aprofessional in most cases.Accordingly, OSHA has concluded that the determinationof work-relatedness is best made by theemployer, as it has been in the past. Employers arein the best position to obtain the information, bothfrom the employee and the workplace, that is necessaryto make this determination. Although expertadvice may occasionally be sought by employers inparticularly complex cases, the final rule providesthat the determination of work-relatedness ultimatelyrests with the employer.The Final Rule’s Exceptions to the GeographicPresumptionParagraph 1904.5(b)(2) of the final rule contains eightexceptions to the work environment presumptionthat are intended to exclude from the recordkeepingsystem those injuries and illnesses that occur ormanifest in the work environment, but have beenidentified by OSHA, based on its years of experiencewith recordkeeping, as cases that do not provideinformation useful to the identification of occupationalinjuries and illnesses and would thus tend to skewnational injury and illness statistics. These eightexceptions are the only exceptions to the presumptionpermitted by the final rule.(i) Injuries or illnesses will not be consideredwork-related if, at the time of the injury or illness, theemployee was present in the work environment as amember of the general public rather than as anemployee.This exception, which is codified at paragraph1904.5(b)(2)(i), is based on the fact that no employmentrelationship is in place at the time an injury orillness of this type occurs. A case exemplifying thisexception would occur if an employee of a retailstore patronized that store as a customer on a nonworkday and was injured in a fall. This exceptionallows the employer not to record cases that occuroutside of the employment relationship when his orher establishment is also a public place and a workerhappens to be using the facility as a member of thegeneral public. In these situations, the injury or illnesshas nothing to do with the employee’s work or§1904.5OSHA RECORDKEEPINGHANDBOOK17

§1904.5the employee’s status as an employee, and it wouldtherefore be inappropriate for the recordkeeping systemto capture the case….(ii) Injuries or illnesses will not be consideredwork-related if they involve symptoms that surface atwork but result solely from a non-work-related eventor exposure that occurs outside the work environment.OSHA’s recordkeeping system is intended only tocapture cases that are caused by conditions or exposuresarising in the work environment. It is notdesigned to capture cases that have no relationshipwith the work environment. For this exception toapply, the work environment cannot have caused,contributed to, or significantly aggravated the injuryor illness. This exception is consistent with the positionfollowed by OSHA for many years and reiteratedin the final rule: that any job-related contribution tothe injury or illness makes the incident work-related,and its corollary--that any injury or illness to whichwork makes no actual contribution is not work-related.An example of this type of injury would be a diabeticincident that occurs while an employee is working.Because no event or exposure at work contributedin any way to the diabetic incident, the caseis not recordable. This exception allows the employerto exclude cases where an employee’s non-workactivities are the sole cause of the injury or illness….(iii) Injuries and illnesses will not be consideredwork-related if they result solely from voluntary participationin a wellness program or in a medical, fitness,or recreational activity such as blood donation, physical,flu shot, exercise classes, racquetball, or baseball.This exception allows the employer to excludecertain injury or illness cases that are related to personalmedical care, physical fitness activities and voluntaryblood donations. The key words here are“solely” and “voluntary.” The work environment cannothave contributed to the injury or illness in anyway for this exception to apply, and participation inthe wellness, fitness or recreational activities must bevoluntary and not a condition of employment.This exception allows the employer to exclude casesthat are related to personal matters of exercise, recreation,medical examinations or participation in blooddonation programs when they are voluntary and arenot being undertaken as a condition of work. Forexample, if a clerical worker was injured while performingaerobics in the company gymnasium duringhis or her lunch hour, the case would not be workrelated.On the other hand, if an employee who wasassigned to manage the gymnasium was injuredwhile teaching an aerobics class, the injury would bework-related because the employee was working atthe time of the injury and the activity was not voluntary.Similarly, if an employee suffered a severe reactionto a flu shot that was administered as part of avoluntary inoculation program, the case would notbe considered work-related; however, if an employeesuffered a reaction to medications administered toenable the employee to travel overseas on business,or the employee had an illness reaction to a medicationadministered to treat a work-related injury, thecase would be considered work-related….(iv) Injuries and illnesses will not be consideredwork-related if they are solely the result of anemployee eating, drinking, or preparing food or drinkfor personal consumption (whether bought on thepremises or brought in).This exception responds to a situation that hasgiven rise to many letters of interpretation andcaused employer concern over the years. An exampleof the application of this exception would be acase where the employee injured himself or herselfby choking on a sandwich brought from home buteaten in the employer’s establishment; such a casewould not be considered work-related under thisexception. On the other hand, if the employee wasinjured by a trip or fall hazard present in the employer’slunchroom, the case would be considered workrelated.In addition, a note to the exception makesclear that if an employee becomes ill as a result ofingesting food contaminated by workplace contaminantssuch as lead, or contracts food poisoning fromfood items provided by the employer, the case wouldbe considered work-related. As a result, if an employeecontracts food poisoning from a sandwichbrought from home or purchased in the companycafeteria and must take time off to recover, the caseis not considered work related. On the other hand, ifan employee contracts food poisoning from a mealprovided by the employer at a business meeting orcompany function and takes time off to recover, thecase would be considered work related. Food providedor supplied by the employer does not includefood purchased by the employee from the companycafeteria, but does include food purchased by theemployer from the company cafeteria for businessmeetings or other company functions. OSHAbelieves that the number of cases to which thisexception applies will be few….(v) Injuries and illnesses will not be consideredwork-related if they are solely the result of employeesdoing personal tasks (unrelated to their employment)at the establishment outside of their assignedworking hours.18OSHA RECORDKEEPINGHANDBOOK

This exception, which responds to inquiriesreceived over the years, allows employers limitedflexibility to exclude from the recordkeeping systemsituations where the employee is using the employer’sestablishment for purely personal reasons duringhis or her off-shift time. For example, if an employeewere using a meeting room at the employer’s establishmentoutside of his or her assigned workinghours to hold a meeting for a civic group to which heor she belonged, and slipped and fell in the hallway,the injury would not be considered work-related. Onthe other hand, if the employee were at the employer’sestablishment outside his or her assigned workinghours to attend a company business meeting or acompany training session, such a slip or fall wouldbe work-related. OSHA also expects the number ofcases affected by this exception to be small….(vi) Injuries and illnesses will not be consideredwork-related if they are solely the result of personalgrooming, self-medication for a non-work-relatedcondition, or are intentionally self-inflicted.This exception allows the employer to excludefrom the Log cases related to personal hygiene, selfadministeredmedications and intentional self-inflictedinjuries, such as attempted suicide. For example, aburn injury from a hair dryer used at work to dry theemployee’s hair would not be work-related. Similarly,a negative reaction to a medication brought fromhome to treat a non-work condition would not beconsidered a work-related illness, even though it firstmanifested at work. OSHA also expects that fewcases will be affected by this exception.(vii) Injuries will not be considered work-related ifthey are caused by motor vehicle accidents occurringin company parking lots or on company access roadswhile employees are commuting to or from work.This exception allows the employer to excludecases where an employee is injured in a motor vehicleaccident while commuting from work to home orfrom home to work or while on a personal errand.For example, if an employee was injured in a caraccident while arriving at work or while leaving thecompany’s property at the end of the day, or whiledriving on his or her lunch hour to run an errand, thecase would not be considered work-related. On theother hand, if an employee was injured in a car accidentwhile leaving the property to purchase suppliesfor the employer, the case would be work-related.This exception represents a change from the positiontaken under the former rule, which was that no injuryor illness occurring in a company parking lot wasconsidered work-related. As explained further below,OSHA has concluded, based on the evidence in therecord, that some injuries and illnesses that occur incompany parking lots are clearly caused by workconditions or activities--e.g., being struck by a carwhile painting parking space indicators on the pavementof the lot, slipping on ice permitted to accumulatein the lot by the employer--and by their naturepoint to conditions that could be corrected to improveworkplace safety and health.(viii) Common colds and flu will not be consideredwork-related.Paragraph 1904.5(b)(2)(viii) allows the employer toexclude cases of common cold or flu, even if contractedwhile the employee was at work. However, in thecase of other infectious diseases such as tuberculosis,brucellosis, and hepatitis C, employers must evaluatereports of such illnesses for work relationship, just asthey would any other type of injury or illness.(ix) Mental illness will not be considered workrelatedunless the employee voluntarily provides theemployer with an opinion from a physician or otherlicensed health care professional with appropriatetraining and experience (psychiatrist, psychologist,psychiatric nurse practitioner, etc.) stating that theemployee has a mental illness that is work-related.…OSHA agrees that recording work-related mentalillnesses involves several unique issues, includingthe difficulty of detecting, diagnosing and verifyingmental illnesses; and the sensitivity and privacy concernsraised by mental illnesses. Therefore, the finalrule requires employers to record only those mentalillnesses verified by a health care professional withappropriate training and experience in the treatmentof mental illness, such as a psychiatrist, psychologist,or psychiatric nurse practitioner. The employer isunder no obligation to seek out information on mentalillnesses from its employees, and employers arerequired to consider mental illness cases only whenan employee voluntarily presents the employer withan opinion from the health care professional that theemployee has a mental illness and that it is workrelated. In the event that the employer does notbelieve the reported mental illness is work-related,the employer may refer the case to a physician orother licensed health care professional for a secondopinion. OSHA also emphasizes that work-relatedmental illnesses, like other illnesses, must be recordedonly when they meet the severity criteria outlinedin Section 1904.7. In addition, for mental illnesses, theemployee’s identity must be protected by omittingthe employee’s name from the OSHA 300 Log andinstead entering “privacy concern case” as requiredby Section 1904.29.§1904.5OSHA RECORDKEEPINGHANDBOOK19

§1904.5Exceptions Proposed but Not AdoptedOSHA does not agree...with those commenters whosuggested that the exception be expanded to includepersonal tasks performed by employees during workhours. As discussed in preceding sections of thissummary and explanation and in the Legal Authoritydiscussion, there are strong legal and policy reasonsfor treating an injury or illness as work-related if anevent or exposure in the work environment causedor contributed to the condition or significantly aggravateda pre-existing condition. Under this “but-for”approach, the nature of the activity the employeewas engaged in at the time of the incident is not relevant,except in certain limited circumstances.Moreover, OSHA believes that it would be difficult inmany cases for employers to distinguish betweenwork activities and personal activities that occurwhile the employee is on-shift. Accordingly, the finalrule codifies parts of this proposed exception in paragraph1904.5(b)(v) in the following form: “The injuryor illness is solely the result of an employee doingpersonal tasks (unrelated to their employment) at theestablishment outside of the employee’s assignedworking hours.” ……In the final rule, OSHA has decided not toexclude from recording those injury and illness casesinvolving acts of violence against employees by familymembers or ex-spouses that occur in the workenvironment or cases involving other types of violence-relatedinjuries and illnesses. The final ruledoes exempt from recording those cases resultingfrom intentionally self-inflicted injuries and illnesses;these cases represent only a small fraction of thetotal number of workplace fatalities (three percent ofall 1997 workplace violence fatalities) (BLS pressrelease USDL 98-336, August 12, 1998). OSHAbelieves that injuries and illnesses resulting from actsof violence against employees at work are work-relatedunder the positional theory of causation. Thecausal connection is usually established by the factthat the assault or other harmful event would nothave occurred had the employee not, as a conditionof his or her employment, been in the position wherehe or she was victimized. Moreover, occupationalfactors are directly involved in many types of workplaceviolence, such as assaults engendered by disputesabout working conditions or practices, orassaults on security guards or cashiers and otheremployees, who face a heightened risk of violence atwork…....[T]he final rule does not allow employers toexclude injuries and illnesses resulting from violenceoccurring in the workplace from their Logs. However,some cases of violence will be excluded underSection 1904.5(b)(2)(v), which exempts an injury or illnessthat is solely the result of an employee doingpersonal tasks (unrelated to their employment) at theestablishment outside of the employee’s assignedworking hours. For example, if an employee arrivesat work early to use a company conference room fora civic club meeting, and is injured by some violentact, the case would not be considered work related….…OSHA has decided to maintain the exclusion forintentionally self-inflicted injuries that occur in thework environment in the final rule. The Agencybelieves that when a self-inflicted injury occurs in thework environment, the case is analogous to one inwhich the signs or symptoms of a pre-existing, nonoccupationalinjury or illness happen to arise at work,and that such cases should be excluded for the samereasons. (see paragraph 1904.5(b)(2)(ii)). The finalrule at paragraph 1904.5(b)(2)(vi) therefore includesthat the part of exception proposed that applied toinjuries and illnesses that are intentionally self-inflicted….…OSHA has concluded that a limited exceptionfor cases occurring on parking lots is appropriate butthat the broader exception proposed is not [which ineffect would have narrowed the definition of “establishment”to exclude company parking lots].The final rule thus provides an exception formotor vehicle injury cases occurring when employeesare commuting to and from work. As discussedin the preamble that accompanies the definition of“establishment” (see Subpart G of the final rule),OSHA has decided to rely on activity-based ratherthan location-based exemptions in the final rule. Theparking lot exception in the final rule applies to casesin which employees are injured in motor vehicle accidentscommuting to and from work and running personalerrands (and thus such cases are not recordable),but does not apply to cases in which anemployee slips in the parking lot or is injured in amotor vehicle accident while conducting companybusiness (and thus such cases are recordable). Thisexception is codified at paragraph 1904.5(b)(2)(vii) ofthe final rule.Proposed Exception....Voluntary CommunityActivities Away From The Employer’s Establishment.…OSHA has decided not to include this proposedexception in the final rule because the final rule’soverall definition of work-environment addresses thissituation in a simple and straightforward way. If theemployee is taking part in the activity and is eitherworking or present as a condition of employment, he20OSHA RECORDKEEPINGHANDBOOK

or she is in the work environment and any injury orillness that arises is presumed to be work-related andmust then be evaluated for its recordability under thegeneral recording criteria. Thus, if the employee isengaged in an activity at a location away from theestablishment, any injury or illness occurring duringthat activity is considered work-related if the workeris present as a condition of employment (for example,the worker is assigned to represent the companyat a local charity event). For those situations wherethe employee is engaged in volunteer work awayfrom the establishment and is not working or presentas a condition of employment, the case is not consideredwork-related under the general definition ofwork-relationship….Proposed Exception....The Case Results Solely FromNormal Body Movements, not Job-Related Motionsor Contribution from the Work Environment.…OSHA has decided not to include a recordkeepingexception for injuries or illnesses associated withnormal body movements in the final rule….Further,the final rule already makes clear that injuries and illnessesthat result solely from non-work causes arenot considered work-related and therefore areexcluded from the Log, and establishes the requirementsemployers must follow to determine workrelationshipfor an injury or illness when it is unclearwhether the precipitating event occurred in the workplaceor elsewhere (see paragraph 1904.5(b)(3)).According to the requirements in that section, theemployer must evaluate the employee’s work dutiesand the work environment to decide whether it ismore likely than not that events or exposures in thework environment either caused or contributed to thecondition or significantly aggravated a pre-existingcondition. If so, the case is work-related.Additional Exceptions Suggested by Commentersbut Not Adopted [in the final rule].…Acts of God:…OSHA has not adopted such anexception because doing so would not be in keepingwith the geographic presumption underpinning thisfinal rule, and would exclude cases that are in factwork-related. For example, if a worker was injured ina flood while at work, the case would be work-related,even though the flood could be considered an actof God. Accordingly, if workplace injuries and illnessesresult from these events, they must be enteredinto the records (for a more detailed discussion ofthis point, see the Legal Authority section, above).Phobias:...OSHA has not included an exception fromrecording in the final recordkeeping regulation forphobias or any other type of mental illness. The scenario...whichinvolved fainting from fear of an injectionoffered as a service to employees, might be considerednon-work-related under the exception codifiedat paragraph 1904.5(b)(2)(iii), Voluntary participationin a medical activity. OSHA also believes that itwould be unreasonable to omit a case of loss of consciousnessresulting from the administration of ablood test for lead exposure at work. These tests arenecessitated by the employee’s exposure to lead atwork and are required by OSHA’s lead standard (29CFR 1910.1025). The other scenarios presented bythese commenters, involving spiders, snakes, etc.,would also be work-related under the geographicpresumption.Illegal activities and horseplay:…OSHA has notadopted any of these recommended exceptions inthe final recordkeeping rule because excluding theseinjuries and illnesses would be inconsistent withOSHA’s longstanding reliance on the geographic presumptionto establish work-relatedness. Furthermore,the Agency believes that many of the working conditionspointed to in these comments involve occupationalfactors, such the effectiveness of disciplinarypolicies and supervision. Thus, recording such incidentsmay serve to alert both the employer andemployees to workplace safety and health issues.Non-occupational degenerative conditions:... suchas high blood pressure, arthritis, coronary artery disease,heart attacks, and cancer that can developregardless of workplace exposure. OSHA has notadded such an exception to the rule, but the Agencybelieves that the fact that the rule expects employersconfronted with such cases to make a determinationabout the extent to which, if at all, work contributedto the observed condition will provide directionabout how to determine the work-relatedness of suchcases. For example, if work contributes to the illnessin some way, then it is work-related and must beevaluated for its recordability. On the other hand, ifthe case is wholly caused by non-work factors, thenit is not work-related and will not be recorded in theOSHA records.Determining Whether the Precipitating Eventor Exposure Occurred in the Work Environmentor ElsewhereParagraph 1904.5(b)(3) of the final rule provides guidanceon applying the geographic presumption whenit is not clear whether the event or exposure that precipitatedthe injury or illness occurred in the workenvironment or elsewhere. If an employee reports§1904.5OSHA RECORDKEEPINGHANDBOOK21

§1904.5pain and swelling in a joint but cannot say whetherthe symptoms first arose during work or duringrecreational activities at home, it may be difficult forthe employer to decide whether the case is workrelated.The same problem arises when an employeereports symptoms of a contagious disease thataffects the public at large, such as a staphylococcusinfection (“staph” infection) or Lyme disease, and theworkplace is only one possible source of the infection.In these situations, the employer must examinethe employee’s work duties and environment todetermine whether it is more likely than not that oneor more events or exposures at work caused or contributedto the condition. If the employer determinesthat it is unlikely that the precipitating event or exposureoccurred in the work environment, the employerwould not record the case. In the staph infectionexample given above, the employer would considerthe case work-related, for example, if anotheremployee with whom the newly infected employeehad contact at work had been out with a staph infection.In the Lyme disease example, the employerwould determine the case to be work-related if, forexample, the employee was a groundskeeper withregular exposure to outdoor conditions likely toresult in contact with deer ticks.In applying paragraph 1904.5(b)(3), the questionemployers must answer is whether the precipitatingevent or exposure occurred in the work environment.If an event, such as a fall, an awkward motion or lift,an assault, or an instance of horseplay, occurs atwork, the geographic presumption applies and thecase is work-related unless it otherwise falls withinan exception. Thus, if an employee trips while walkingacross a level factory floor, the resulting injury isconsidered work-related under the geographic presumptionbecause the precipitating event -- the trippingaccident -- occurred in the workplace. The caseis work-related even if the employer cannot determinewhy the employee tripped, or whether any particularworkplace hazard caused the accident tooccur. However, if the employee reports an injury atwork but cannot say whether it resulted from anevent that occurred at work or at home, as in theexample of the swollen joint, the employer mightdetermine that the case is not work-related becausethe employee’s work duties were unlikely to havecaused, contributed to, or significantly aggravatedsuch an injury.Significant Workplace Aggravation of aPre-existing ConditionIn paragraph 1904.5(b)(4), the final rule...requires thatthe amount of aggravation of the injury or illness thatwork contributes must be “significant,” i.e., nonminor,before work-relatedness is established. Thepreexisting injury or illness must be one causedentirely by non-occupational factors….…As discussed above, OSHA agrees that nonwork-relatedinjuries and illnesses should not berecorded on the OSHA Log. To ensure that non-workrelatedcases are not entered on the Log, paragraph1904.5(b)(2)(ii) requires employers to consider asnon-work-related any injury or illness that “involvessigns or symptoms that surface at work but resultsolely from a non-work-related event or exposurethat occurs outside the work environment.”The Agency also believes that preexisting injuryor illness cases that have been aggravated by eventsor exposures in the work environment representcases that should be recorded on the Log, becausework has clearly worsened the injury or illness.OSHA is concerned, however, that there are somecases where work-related aggravation affects the preexistingcase only in a minor way, i.e., in a way thatdoes not appreciably worsen the preexisting condition,alter its nature, change the extent of the medicaltreatment, trigger lost time, or require job transfer.Accordingly, the final rule requires that workplaceevents or exposures must “significantly” aggravate apre-existing injury or illness case before the case ispresumed to be work-related. Paragraph 1904.5(a)states that an injury or illness is considered workrelatedif “an event or exposure in the work environmenteither caused or contributed to the resultingcondition or significantly aggravated a pre-existinginjury or illness.”Paragraph 1904.5(b)(4) of the final rule definesaggravation as significant if the contribution of theaggravation at work is such that it results in tangibleconsequences that go beyond those that the workerwould have experienced as a result of the preexistinginjury or illness alone, absent the aggravating effectsof the workplace. Under the final rule, a preexistinginjury or illness will be considered to have been significantlyaggravated, for the purposes of OSHAinjury and illness recordkeeping, when an event orexposure in the work environment results in: (i)Death, providing that the preexisting injury or illnesswould likely not have resulted in death but for theoccupational event or exposure; (ii) Loss of consciousness,providing that the preexisting injury orillness would likely not have resulted in loss of consciousnessbut for the occupational event or exposure;(iii) A day or days away from work or of restrictedwork, or a job transfer that otherwise would not22OSHA RECORDKEEPINGHANDBOOK

have occurred but for the occupational event orexposure; or (iv) Medical treatment where no medicaltreatment was needed for the injury or illnessbefore the workplace event or exposure, or a changein the course of medical treatment that was beingprovided before the workplace event or exposure.OSHA’s decision not to require the recording of casesinvolving only minor aggravation of preexisting conditionsis consistent with the Agency’s efforts in thisrulemaking to require the recording only of nonminorinjuries and illnesses; for example, the finalrule also no longer requires employers to recordminor illnesses on the Log.Preexisting ConditionsParagraph 1904.5(b)(5) stipulates that pre-existingconditions, for recordkeeping purposes, are conditionsthat resulted solely from a non-work-relatedevent or exposure that occurs outside the employer’swork environment. Pre-existing conditions alsoinclude any injury or illness that the employee experiencedwhile working for another employer.Off Premises Determinations…In the final rule, (paragraph 1904.5(b)(1)) the sameconcept is carried forward in the definition of thework environment, which defines the environment asincluding the establishment and any other locationwhere one or more employees are working or arepresent as a condition of their employment.Thus, when employees are working or conductingother tasks in the interest of their employer but at alocation away from the employer’s establishment,the work-relatedness of an injury or illness that arisesis subject to the same decision making process thatwould occur if the case had occurred at the establishmentitself. The case is work-related if one or moreevents or exposures in the work environment eithercaused or contributed to the resulting condition orsignificantly aggravated a pre-existing condition, asstated in paragraph 1904.5(a). In addition, the exceptionsfor determining work relationship at paragraph1904.5(b)(2) and the requirements at paragraph1904.5(b)(3) apply equally to cases that occur at oraway from the establishment.As an example, the work-environment presumptionclearly applies to the case of a delivery driverwho experiences an injury to his or her back whileloading boxes and transporting them into a building.The worker is engaged in a work activity and theinjury resulted from an event--loading/unloading--occurring in the work environment. Similarly, if anemployee is injured in an automobile accident whilerunning errands for the company or traveling tomake a speech on behalf of the company, theemployee is present at the scene as a condition ofemployment, and any resulting injury would bework-related.Employees on Travel StatusThe final rule continues (at Section 1904.5(b)(6))OSHA’s longstanding practice of treating injuries andillnesses that occur to an employee on travel statusas work-related if, at the time of the injury or illness,the employee was engaged in work activities “in theinterest of the employer.” Examples of such activitiesinclude travel to and from customer contacts,conducting job tasks, and entertaining or being entertainedif the activity is conducted at the direction ofthe employer.The final rule contains three exceptions for travelstatussituations. The rule describes situations inwhich injuries or illnesses sustained by travelingemployees are not considered work-related for OSHArecordkeeping purposes and therefore do not have tobe recorded on the OSHA 300 Log. First, when a travelingemployee checks into a hotel, motel, or othertemporary residence, he or she is considered to haveestablished a “home away from home.” At this time,the status of the employee is the same as that of anemployee working at an establishment who leaveswork and is essentially “at home.” Injuries and illnessesthat occur at home are generally not consideredwork related. However, just as an employer maysometimes be required to record an injury or illnessoccurring to an employee working in his or herhome, the employer is required to record an injury orillness occurring to an employee who is working inhis or her hotel room (see the discussion of workingat home, below).Second, if an employee has established a “homeaway from home” and is reporting to a fixed worksiteeach day, the employer does not considerinjuries or illnesses work-related if they occur whilethe employee is commuting between the temporaryresidence and the job location. These cases are parallelto those involving employees commuting to andfrom work when they are at their home location, anddo not have to be recorded, just as injuries and illnessesthat occur during normal commuting are notrequired to be recorded.Third, the employer is not required to consider aninjury or illness to be work-related if it occurs whilethe employee is on a personal detour from the routeof business travel. This exception allows the employerto exclude injuries and illnesses that occur when§1904.5OSHA RECORDKEEPINGHANDBOOK23

§1904.5the worker has taken a side trip for personal reasonswhile on a business trip, such as a vacation or sightseeingexcursion, to visit relatives, or for some otherpersonal purpose….However, as discussed in the Legal Authority sectionand the introduction to the work-relationshipsection of the preamble, OSHA has decided not tolimit the recording of occupational injuries and illnessesto those cases that are preventable, fall withinthe employer’s control, or are covered by theemployer’s safety and health program. The issue isnot whether the conditions could have, or shouldhave, been prevented or whether they were controllable,but simply whether they are occupational, i.e.,are related to work. This is true regardless of whetherthe employee is injured while on travel or while presentat the employer’s workplace. An employee who isinjured in an automobile accident or killed in an airlinecrash while traveling for the company has clearlyexperienced a work-related injury that is rightfullyincluded in the OSHA injury and illness records andthe Nation’s occupational injury and illness statistics…....[T]he Agency believes that employees who areengaged in management, sales, customer serviceand similar jobs must often entertain clients, and thatdoing so is a business activity that requires theemployee to work at the direction of the employerwhile conducting such tasks. If the employee isinjured or becomes ill while engaged in such work,the injury or illness is work-related and should berecorded if it meets one or more of the other criteria(death, medical treatment, etc.). The gastroenteritisexample...is one type of injury or illness that mayoccur in this situation, but employees are also injuredin accidents while transporting clients to businessrelatedevents at the direction of the employer or byother events or exposures arising in the work environment.On the other hand, not all injuries and illnessessustained in the course of business-related entertainmentare reportable. To be recordable, the entertainmentactivity must be one that the employeeengages in at the direction of the employer.Business-related entertainment activities that areundertaken voluntarily by an employee in the exerciseof his or her discretion are not covered by therule. For example, if an employee attending a professionalconference at the direction of the employergoes out for an evening of entertainment withfriends, some of whom happen to be clients or customers,any injury or illness resulting from the entertainmentactivities would not be recordable. In thiscase, the employee was socializing after work, notentertaining at the direction of the employer.Similarly, the fact that an employee joins a privateclub or organization, perhaps to “network” or makebusiness contacts, does not make any injury thatoccurs there work-related….OSHA believes that expanding the concept ofwork-related travel to include all of the time theworker spends on a trip would be inconsistent withthe tests of work-relationship governing the recordingof other injuries and illnesses and would thereforeskew the statistics and confuse employers….…OSHA is therefore continuing the Agency’s practiceof excluding certain cases while employees arein travel status and applying the exceptions to thegeographic presumption in the final rule to thoseoccurring while the worker is traveling….…OSHA notes that the recordkeeping regulationdoes not apply to travel outside the United Statesbecause the OSH Act applies only to the confines ofthe United States (29 U.S.C. Section 652(4)) and notto foreign operations. Therefore, the OSHA recordkeepingregulation does not apply to non-U.S. operations,and injuries or illnesses that may occur to aworker traveling outside the United States need notbe recorded on the OSHA 300 Log.Working at HomeThe final rule also includes provisions at Section1904.5(b)(7) for determining the work-relatedness ofinjuries and illnesses that may arise when employeesare working at home. When an employee is workingon company business in his or her home and reportsan injury or illness to his or her employer, and theemployee’s work activities caused or contributed tothe injury or illness, or significantly aggravated a preexistinginjury, the case is considered work-relatedand must be further evaluated to determine whetherit meets the recording criteria. If the injury or illnessis related to non-work activities or to the generalhome environment, the case is not considered workrelated.The final rule includes examples to illustrate howemployers are required to record injuries and illnessesoccurring at home. If an employee drops a box ofwork documents and injures his or her foot, the casewould be considered work-related. If an employee’sfingernail was punctured and became infected by aneedle from a sewing machine used to perform garmentwork at home, the injury would be consideredwork-related. If an employee was injured because heor she tripped on the family dog while rushing toanswer a work phone call, the case would not be24OSHA RECORDKEEPINGHANDBOOK

considered work-related. If an employee working athome is electrocuted because of faulty home wiring,the injury would not be considered work-related….…Injuries and illnesses occurring while theemployee is working for pay or compensation athome should be treated like injuries and illnessessustained by employees while traveling on business.The relevant question is whether or not the injury orillness is work-related, not whether there is some elementof employer control. The mere recording ofthese injuries and illnesses as work-related casesdoes not place the employer in the role of insuringthe safety of the home environment….…OSHA has recently issued a compliance directive(CPL 2-0.125)….That document clarifies thatOSHA will not conduct inspections of home officesand does not hold employers liable for employees’home offices. The compliance directive also notesthat employers required by the recordkeeping rule tokeep records “will continue to be responsible forkeeping such records, regardless of whether theinjuries occur in the factory, in a home office, or elsewhere,as long as they are work-related, and meetthe recordability criteria of 29 CFR Part 1904.”With more employees working at home undervarious telecommuting and flexible workplacearrangements, OSHA believes that it is important torecord injuries and illnesses attributable to worktasks performed at home. If these cases are notrecorded, the Nation’s injury and illness statisticscould be skewed. For example, placing such anexclusion in the final rule would make it difficult todetermine if a decline in the overall number or rate ofoccupational injuries and illnesses is attributable to atrend toward working at home or to a change in theNation’s actual injury and illness experience. Further,excluding these work-related injuries and illnessesfrom the recordkeeping system could potentiallyobscure previously unidentified causal connectionsbetween events or exposures in the work environmentand these incidents. OSHA is unwilling to adoptan exception that would have these potentialeffects….FREQUENTLY ASKED QUESTIONS: Section 1904.5 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.5 Determination of work-relatednessQuestion 5-1. If a maintenance employee is cleaningthe parking lot or an access road and is injured as aresult, is the case work-related?Yes, the case is work-related because the employee isinjured as a result of conducting company businessin the work environment. If the injury meets the generalrecording criteria of Section 1904.7 (death, daysaway, etc.), the case must be recorded.Question 5-2. Are cases of workplace violence consideredwork-related under the new Recordkeepingrule?The Recordkeeping rule contains no general exception,for purposes of determining work-relationship,for cases involving acts of violence in the work environment.However, some cases involving violent actsmight be included within one of the exceptions listedin section 1904.5(b)(2). For example, if an employeearrives at work early to use a company conferenceroom for a civic club meeting and is injured by someviolent act, the case would not be work-related underthe exception in section 1904.5(b)(2)(v).Question 5-3. What activities are considered “personalgrooming” for purposes of the exception to thegeographic presumption of work-relatedness insection 1904.5(b)(2)(vi)?Personal grooming activities are activities directlyrelated to personal hygiene, such as combing anddrying hair, brushing teeth, clipping fingernails andthe like. Bathing or showering at the workplace whennecessary because of an exposure to a substance atwork is not within the personal grooming exceptionin section 1904.5(b)(2)(vi). Thus, if an employee slipsand falls while showering at work to remove a contaminantto which he has been exposed at work, andsustains an injury that meets one of the generalrecording criteria listed in section 1904.7(b)(1), thecase is recordable.Question 5-4. What are “assigned working hours”for purposes of the exception to the geographic presumptionin section 1904.5(b)(2)(v)?“Assigned working hours,” for purposes of section1904.5(b)(2)(v), means those hours the employee isactually expected to work, including overtime.Question 5-5. What are “personal tasks” for purposesof the exception to the geographic presumption insection 1904.5(b)(2)(v)?§1904.5OSHA RECORDKEEPINGHANDBOOK25

§1904.526“Personal tasks” for purposes of section1904.5(b)(2)(v) are tasks that are unrelated to theemployee’s job. For example, if an employee uses acompany break area to work on his child’s scienceproject, he is engaged in a personal task.Question 5-6. If an employee stays at work after normalwork hours to prepare for the next day’s tasksand is injured, is the case work-related? For example,if an employee stays after work to prepare air-samplingpumps and is injured, is the case work-related?A case is work-related any time an event or exposurein the work environment either causes or contributesto an injury or illness or significantly aggravates apre-existing injury or illness, unless one of the exceptionsin section 1904.5(b)(2) applies. The work environmentincludes the establishment and other locationswhere one or more employees are working orare present as a condition of their employment. Thecase in question would be work-related if theemployee was injured as a result of an event orexposure at work, regardless of whether the injuryoccurred after normal work hours.Question 5-7. If an employee voluntarily takes workhome and is injured while working at home, is thecase recordable?No. Injuries and illnesses occurring in the home environmentare only considered work-related if theemployee is being paid or compensated for workingat home and the injury or illness is directly related tothe performance of the work rather than to the generalhome environment.Question 5-8. If an employee’s pre-existing medicalcondition causes an incident which results in a subsequentinjury, is the case work-related? For example,if an employee suffers an epileptic seizure, falls,and breaks his arm, is the case covered by the exceptionin section 1904.5(b)(2)(ii)?Neither the seizures nor the broken arm are recordable.Injuries and illnesses that result solely fromnon-work-related events or exposures are not recordableunder the exception in section 1904.5(b)(2)(ii).Epileptic seizures are a symptom of a disease of nonoccupationalorigin, and the fact that they occur atwork does not make them work-related. Becauseepileptic seizures are not work-related, injuries resultingsolely from the seizures, such as the broken armin the case in question, are not recordable.OSHA RECORDKEEPINGQuestion 5-9. This question involves the followingsequence of events: Employee A drives to work,parks her car in the company parking lot and is walkingacross the lot when she is struck by a car drivenby employee B, who is commuting to work. Bothemployees are seriously injured in the accident. Iseither case work-related?Neither employee’s injuries are recordable. While theemployee parking lot is part of the work environmentunder section 1904.5, injuries occurring there are notwork-related if they meet the exception in section1904.5(b)(2)(vii). Section 1904.5(b)(2)(vii) exceptsinjuries caused by motor vehicle accidents occurringon the company parking lot while the employee iscommuting to and from work. In the case in question,both employees’ injuries resulted from a motorvehicle accident in the company parking lot while theemployees were commuting. Accordingly, the exceptionapplies.Question 5-10. How does OSHA define a “companyparking lot” for purposes of Recordkeeping?Company parking lots are part of the employer’spremises and therefore part of the establishment.These areas are under the control of the employer,i.e. those parking areas where the employer can limitaccess (such as parking lots limited to the employer’semployees and visitors). On the other hand, a parkingarea where the employer does not have control(such as a parking lot outside of a building shared bydifferent employers, or a public parking area likethose found at a mall or beneath a multi-employeroffice building) would not be considered part of theemployers establishment (except for the owner ofthe building or mall), and therefore not a companyparking lot for purposes of OSHA recordkeeping.Question 5-11. An employee experienced an injury orillness in the work environment before they had“clocked in” for the day. Is the case consideredwork- related even if that employee was not officially“on the clock” for pay purposes?Yes. For purposes of OSHA recordkeeping, injuriesand illnesses occurring in the work environment areconsidered work-related. Punching in and out with atime clock (or signing in and out) does not affect theoutcome for determining work-relatedness. If theemployee experienced a work-related injury or illness,and it meets one or more of the general recordingcriteria under section 1904.7, it must be enteredon the employer’s OSHA 300 log.HANDBOOK

Question 5-12. Is work-related stress recordable as amental illness case?Mental illnesses, such as depression or anxiety disorder,that have work-related stress as a contributing factor,are recordable if the employee voluntarily providesthe employer with an opinion from a physician orother licensed health care professional with appropriatetraining and experience (psychiatrist, psychologist,psychiatric nurse practitioner, etc.) stating that theemployee has a mental illness that is work-related,and the case meets one or more of the general recordingcriteria. See sections 1904.5(b)(2)(ix) and 1904.7.Question 5-13. If an employee dies or is injured orinfected as a result of terrorist attacks, should it berecorded on the OSHA Injury and Illness Log? Shouldit be reported to OSHA?Yes, injuries and illnesses that result from a terroristevent or exposure in the work environment are consideredwork-related for OSHA recordkeeping purposes.OSHA does not provide an exclusion for violence-relatedinjury and illness cases, includinginjuries and illnesses resulting from terrorist attacks.Within eight (8) hours after the death of any employeefrom a work-related incident or the in-patient hospitalizationof three or more employees as a result ofa work-related incident, an employer must orallyreport the fatality/multiple hospitalization by telephoneor in person to the OSHA Area that is nearestto the site of the incident. An employer may also usethe OSHA toll-free central telephone number, 1-800-321-OSHA (1-800-321-6742).LETTERS OF INTERPRETATION : Section 1904.5Section 1904.5 Determination of work-relatedness.OSHA requirements are set by statute, standards and regulations. Letters of interpretation explainthese requirements and how they apply to particular circumstances, but they cannot create additionalemployer obligations. These letters constitute OSHA’s interpretation of the requirements discussed.Note that OSHA enforcement guidance may be affected by changes to OSHA rules. Also, from time totime we update our guidance in response to new information. To keep apprised of such developments,you can consult OSHA’s website at http://www.osha.gov.§1904.5Letters of Interpretation constitute OSHA’s interpretation only of the requirements discussed and maynot be applicable to any situation not delineated within the original correspondence.Letter of interpretation related to section 1904.5(b)(6) –Recordability of a fatal traffic accident in a foreign project location.August 26, 2004Mr. John A. Dempsey, Jr.Vice PresidentPFD International LLCOne Fluor Daniel DriveSugarland, TX 77478Dear Mr. Dempsey:We in OSHA’s Directorate of Evaluation and Analysis are responding to your letter dated Friday,April 16, 2004 in which you request guidance on the proper recordability classification of a recentmotor vehicle fatality that occurred in one of your foreign project locations.I will assume that you realize that the Occupational Safety and Health Act, and therefore the 29CFR Part 1904 OSHA Recordkeeping Regulation, apply only within the jurisdictional boundariesof the United States and certain locations listed in Section 4(a), 29 USC §653(a) of the Act.OSHA RECORDKEEPINGHANDBOOK27

If the accident had occurred in a location subject to OSHA jurisdiction, the fatality appears, fromthe facts recounted in your letter, to be recordable. A fatality is work-related, and therefore recordable, if it occurred while the employee was traveling “in the interest of the employer,” such as drivingto attend a work meeting, see 29 CFR §1904.5(b)(6). Please note that the employee’s pay statusat the time of the accident does not affect the work relatedness of the case. An exception wouldapply if the accident occurred while the employee was on a personal detour from a reasonablydirect route of travel, see 29 CFR §1904.5(b)(6)(ii). Since you stated that you do not know whetheror not the employee took any personal side trip(s) from the normal highway route to the meeting,the exception would not apply.Thank you for your interest in occupational safety and health. We hope you find this informationhelpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation lettersexplain these requirements and how they apply to particular circumstances, but they cannotcreate additional employer obligations. This letter constitutes OSHA’s interpretation of the requirementsdiscussed. Note that our enforcement guidance may be affected by changes to OSHA rules.In addition, from time to time we update our guidance in response to new information. To keepapprised of such developments, you can consult OSHA’s website at http://www.osha.gov. If youhave any further questions, please contact the Division of Recordkeeping Requirements at 202-693-1702.Sincerely,Keith Goddard, DirectorDirectorate of Evaluation and Analysis§1904.5Letter of interpretation related to sections 1904.5, 1904.5(a), 1904.5(b)(2), 1904.6, 1904.6(a), 1904.7 and 1904.31 –Evaluation of seven scenarios for work-relatedness and recordkeeping requirements.January 15, 2004Ms. Leann M. Johnson-Koch1200 Nineteenth Street, N.W.Washington, D.C. 20036-2412Dear Ms. Johnson-Koch:Thank you for your E-mail to the Occupational Safety and Health Administration (OSHA) regardingthe Injury and Illness Recording and Reporting Requirements contained in 29 CFR Part 1904.Your letter was forwarded to my office by Richard Fairfax, Director, Directorate of EnforcementPrograms. The Division of Recordkeeping Requirements is responsible for the administration ofthe OSHA injury and illness recordkeeping system nationwide. Please excuse the delay in respondingto your request.In your letter, you ask OSHA to clarify the following scenarios to ensure accurate and consistentguidance to your members for purposes of OSHA Recordkeeping requirements. I will address yourscenarios by first restating each one and then answering it.Scenario 1:• An employee reported to work at 7:00 a.m.• At 12:15 p.m. the employee reported that his toes on his left foot had started swelling and hisfoot had started hurting.• The employee wanted to go to a doctor for evaluation.• On the First Report of Injury, that the employee completed before he went to the doctor, theemployee indicated that the cause of the illness was “unknown (feet wet at cooling tower).”• When answering the doctor’s question: “How did injury occur?” the employee answered thatthe only thing he could think of was that his feet were wet all the previous day due to work in themorning at a cooling tower. The cooling tower water is treated to remove bacteria and then usedin process operations in the plant.28OSHA RECORDKEEPINGHANDBOOK

• The doctor described the illness/injury as foot edema/cellulitis.• The doctor also prescribed the injury as an occupational disease, prescribed an antibiotic, andthe employee missed one day of work.• The company sent the employee to a second doctor who said to continue using the antibiotic.• Neither doctor could state conclusively that the foot edema/cellulitis was or was not due to theemployee’s feet being wet due to work at the cooling tower.• Neither doctor is a specialist in skin disorders.• During an incident review at the site, the employee again said he did not know if his feet beingwet all day the previous day caused the injury/illness.• The employee also stated that he had not worn the personal protective equipment, rubber boots,prescribed for this task.The company determined that this injury/illness is not work-related (did not occur in the course ofor as a result of employment), since neither physician nor the employee can state with certaintythat the injury/illness was caused by the employee’s feet being wet all day due to work at the coolingtower. Since the injury/illness was determined to not be work-related, then the companydeemed the incident non-recordable.Response: A case is work-related if it is more likely than not that an event or exposure in the workenvironment was a cause of the injury or illness. The work event or exposure need only be one ofthe causes; it not need to be the sole or predominant cause. In this case, the fact that neither thephysician nor the employee could state with certainty that the employee’s edema was caused byworking with wet feet is not dispositive. The physician’s description of the edema as an “occupationaldisease,” and the employee’s statement that working with wet feet was “the only thing hecould of” as the cause, indicate that it is more likely than not that working with wet feet was acause. The case should be recorded on the OSHA 300 Log.Scenario 2:An employee must report to work by 8:00 a.m.• The employee drove into the company parking lot at 7:30 a.m. and parked the car.• The employee exited the car and proceeded to the office to report to work.• The parking lot and sidewalks are privately owned by the facility and both are within the propertyline, but not the controlled access points (i.e., fence, guards).• The employee stepped onto the sidewalk and slipped on the snow and ice.• The employee suffered a back injury and missed multiple days of work.The company believes that the employee was still in the process of the commute to work since theemployee had not yet checked in at the office. Since a work task was not being performed, the sitepersonnel deemed the incident not work-related and therefore not recordable.§1904.5Response: Company parking lots and sidewalks are part of the employer’s establishment forrecordkeeping purposes. Here, the employee slipped on an icy sidewalk while walking to the officeto report for work. In addition, the event or exposure that occurred does not meet any of thework-related exceptions contained in 1904.5(b)(2). The employee was on the sidewalk because ofwork; therefore, the case is work-related regardless of the fact that he had not actually checked in.Scenario 3:The employee described in Scenario 2 missed 31 days of work due to the back injury.• On day 31, the doctor provided a release for returning to work.• The next morning (day 32), when the employee was due to report to work, the employee statedthat his back was hurting, and the employee did not report to work.• The employee scheduled a doctor’s appointment, with the same doctor, and visited the doctor onday 33.• The doctor issued a statement stating that the employee was not able to return to work.Since the employee was released to return to work, the company does not believe it has to countthe intervening two days on the OSHA log.Response: The employer would have to enter the additional days away from work on the OSHA300 log based on receiving information from the physician or other licensed health care professionalthat the employee was unable to work.OSHA RECORDKEEPINGHANDBOOK29

Scenario 4:• An employee reports to work.• Several hours later, the employee goes outside for a “smoke break.”• The employee slips on the ice and injures his back.Since the employee was not performing a task related to the employee’s work, the company hasdeemed this incident non-work related and therefore not recordable.Response: Under Section 1904.5(b)(2)(v), an injury or illness is not work-related if it is solely theresult of an employee doing personal tasks (unrelated to their employment) at the establishmentoutside of the employee’s assigned working hours. In order for this exception to apply, the casemust meet both of the stated conditions. The exception does not apply here because the injury orillness occurred within normal working hours. Therefore, your case in question is work-related,and if it meets the general recording criteria under Section 1904.7 the case must be recorded.Scenario 5:• An employee drives into the company parking lot at 7:30 a.m., exits his car, and proceeds tocross the parking lot to clock-in to work.• A second employee, also on the way to work, approaches the first employee, and the two individualsget into a physical altercation in the parking lot. The first employee breaks an arm duringthe altercation.• The employee goes to the doctor and receives medical treatment for his injury.The company deems this non-work related, and therefore non-recordable, since the employees hadnot yet reported to work and a work task was not being performed at the time of the altercation.§1904.5Response: The recordkeeping regulation contains no general exception for purposes of determiningwork-relationship for cases involving acts of violence in the work environment. Company parkinglots/access roads are part of the employer’s premises and therefore part of the employer’s establishment.Whether the employee had not clocked in to work does not affect the outcome for determiningwork-relatedness. The case is recordable on the OSHA log, because the injury meets the generalrecording criteria contained in Section 1904.7.Scenario 6:• An employee injured a knee performing work-related activities in 2001.• The accident was OSHA recordable and subject to worker’s compensation.• The employee had arthroscopic knee surgery eleven months later and was released to full duty amonth and a half after the arthroscopic surgery.• The employee had a second knee injury three months after the return to work release (after thefirst surgery).• Post-surgery (second surgery), the doctor prescribed Vioxx® as an anti-inflammatory.• Approximately one and one-half months after the second knee surgery, the employee was givenanother full release to return to work full duty and returned to work.• However, the doctor told the employee to continue to take Vioxx® as prescribed (as needed) andto return to the doctor as needed.• The employee scheduled a follow-up appointment with the doctor.• The day before the appointment, the employee bumped his knee at work.• During his scheduled doctor’s appointment (was to be the last follow-up visit) the employee mentionedthe latest incident (bumping the knee) to the doctor and showed him where the pain wasoccurring due to bumping his knee.• The doctor stated that the employee had an inflamed tendon (Grade 1 lateral collateral ligamentsprain) that was not part of the initial surgery (patellar tendonitis).• The doctor stated in the diagnosis that the original injury that required knee surgery was resolved.• The doctor told the employee to continue taking Vioxx® for the inflamed tendon.Since the employee was already taking the medication prescribed (Vioxx®), the site does notbelieve this is recordable as a second incident.Response: In the recordkeeping regulation, the employer is required to follow any determination aphysician or other licensed health care professional has made about the status of a new case. Theinflamed tendon is a new case because the employee had completely recovered from the previousinjury and illness and a new event or exposure had occurred in the work environment. Therefore,for purposes of OSHA recordkeeping, the employer would enter the case on the OSHA 300 log asappropriate.30OSHA RECORDKEEPINGHANDBOOK

Scenario 7:• A site hired numerous temporary workers at its plant.• Three temporary workers were injured.• They each received injuries that were recordable on the OSHA 300 Log.• The employees were under the direct supervision of the site.Is it correct that these injuries were recordable on the site log or should they have been recordableon the temp agency log? What are the criteria related to temporary workers that need to bereviewed to determine which OSHA log is appropriate for recording the injury/illness?Response: Section 1904.31 states that the employer must record the injuries and illnesses that occurto employees not on its payroll if it supervises them on a day-to-day basis. Day-to-day supervisiongenerally exists when the employer “supervises not only the output, product, or result to be accomplishedby the person’s work, but also the details, means, methods, and processes by which thework objective is accomplished.”Thank you for your interest in occupational safety and health. We hope you find this informationhelpful. OSHA requirements are set by statute, standards and regulations. Our interpretation lettersexplain these requirements and how they apply to particular circumstances, but they cannot createadditional employer obligations. This letter constitutes OSHA’s interpretation of the requirementsdiscussed. Note that our enforcement guidance may be affected by changes to OSHA rules. In addition,from time to time we update our guidance in response to new information. To keep appraisedof such developments, you can consult OSHA’s website at http://www.osha.gov. If you have anyfurther questions, please contact the Division of Recordkeeping Requirements, at 202-693-1702.Sincerely,Frank FrodymaActing DirectorLetter of interpretation related to sections 1904.5(a), 1904.5(b)(4) and 1904.6 –Determining work-relatedness when the work event or exposure is only one of the discernable causes; not thesole or predominant cause.§1904.5January 13, 2004William K. PrincipeConstangy, Brooks & Smith, LLCSuite 2400230 Peachtree Street, N.W.Atlanta, Georgia 30303-1557Dear Mr. Principe:Thank you for your comments pertaining to the Occupational Safety and Health Administration’s(OSHA) Injury and Illness Recording and Reporting requirements contained in 29 CFR Part 1904.Please accept my apology for the delay in our response.Specifically, you ask OSHA to clarify in each scenario you describe; whether the employee who sustainsan injury or illness while he or she is engaged in an activity such as walking or bending isconsidered work-related. As you note, a case is presumed work-related under the recordkeepingrule if an event or exposure in the work environment is a discernable cause of the injury or illness.The work event or exposure need only be one of the discernable causes; it need not be the sole orpredominant cause. The preamble to the rule contains a passage that is relevant in determiningwhether this presumption applies in the scenarios in your letter. The preamble states, in relevantpart, as follows:OSHA RECORDKEEPINGHANDBOOK31

In applying [the presumption of work-relatedness], the question employers must answer iswhether there is an identifiable event or exposure which occurred in the work environment andresulted in the injury or illness. “Thus, if an employee trips while walking across a level factoryfloor, the resulting injury is considered work-related under the geographic presumption becausethe precipitating event - the tripping accident - occurred in the workplace. The case is workrelatedeven if the employer cannot determine why the employee tripped, or whether any particularworkplace hazard caused the accident to occur.”In each of the eight scenarios in your letter, the activity engaged in by the employee at the time ofthe injury (walking, tripping, climbing a staircase, sneezing, bending down) is an “event” whichwould trigger application of the presumption. In the absence of evidence to overcome the presumption,the injury is work-related. Thus, in the absence of evidence to overcome the presumption, anankle injury caused by a trip that occurred while the employee was walking down a level seamlesshallway at work is work-related, regardless of whether the accident is attributable to a defect in thehall. By the same reasoning, if the activity of walking down a hallway caused the employee’s kneeto buckle or to sprain the ankle, the injury is work-related. If an injury or illness did not resultfrom an identifiable event or exposure in the work environment, but only manifested itself duringwork, the injury is not work-related. For example, if the employee had a non-occupational event orexposure, and there is no evidence of a work-related event or exposure that was a cause of theinjury or illness, the injury should not be recorded.§1904.5You also ask whether the determination of work-relationship would be affected by the existence ofa pre-existing condition, whether work-related or non-work-related, affecting the same body partthat is injured. Under the rule, a pre-existing condition is an injury or illness resulting solely from anon-work-related event or exposure. If an employee’s pre-existing condition is worsened as a resultof an event or exposure at work, the case is not work-related unless the work event or exposure“significantly aggravated” the preexisting condition (i.e., the case meets the recording criteria containedin Section 1904.5(b)(4). If the employee with a pre-existing work-related injury to a bodypart suffers a subsequent work-related injury of the same type to the same body part, the subsequentinjury is recordable (assuming the general recording criteria are met) if it is a “new case” asdiscussed in Section 1904.6.Thank you for your interest in occupational safety and health. We hope you find this informationhelpful. OSHA requirements are set by statute, standards and regulations. Our interpretation lettersexplain these requirements and how they apply to particular circumstances, but they cannot createadditional employer obligations. This letter constitutes OSHA’s interpretation of the requirementsdiscussed. Note that our enforcement guidance may be affected by changes to OSHA rules. In addition,from time to time we update our guidance in response to new information. To keep appraisedof such developments, you can consult OSHA’s website at http://www.osha.gov. If you have anyfurther questions, please contact the Division of Recordkeeping Requirements, at 202-693-1702.Sincerely,Frank FrodymaActing DirectorDirectorate of Evaluation and Analysis32OSHA RECORDKEEPINGHANDBOOK

Letter of interpretation related to section 1904.5(b)(2) –Clarification of Recordkeeping’s work-related exception.July 22, 2003Jeff Romine, CSP, CPEASafety ManagerShaw Industries, Inc.Mail Drop 021-01PO Drawer 2128Dalton, GA 30722-2128Dear Mr. Romine:Thank you for your May 9, 2003 letter to the Occupational Safety and Health Administration (OSHA)regarding the Injury and Illness Recording and Reporting requirements contained in 29 CFR Part 1904.Specifically, you ask OSHA to clarify the work-related exception specified at 1904.5(b)(2)(v) in which aninjury or illness is solely the result of an employee doing personal tasks (unrelated to their employment)at the establishment outside of the employee’s assigned working hours. You indicate an employee experiencedan injury in the work environment during his or her assigned working hours, but feel the task wasunrelated to the employee’s job, therefore would not be considered work-related. In order to correctlyapply the work-related exception 1904.5(b)(2)(v), the case must meet both of the following conditions.The case must involve first, personal tasks at the establishment and second, must have occurred outsideof the employee’s assigned working hours. The nature of the activity in which the employee is engagedin at the time of the event or exposure, the degree of employer control over the employee’s activity, thepreventability of the incident, or the concept of fault do not affect the determination of work-relationship.For purposes of OSHA recordkeeping, the case did not meet the entire criteria under section1904.5(b)(2)(v).Thank you for your interest in occupational safety and health. We hope you find this information helpful.OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explainthese requirements and how they apply to particular circumstances, but they cannot create additionalemployer obligations. This letter constitutes OSHA’s interpretation of the requirements discussed. Notethat our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time weupdate our guidance in response to new information. To keep appraised of such developments, you canconsult OSHA’s website at http://www.osha.gov. If you have any further questions, please contact theDivision of Recordkeeping Requirements at 202-693-1702.§1904.5Sincerely,John L. HenshawAssistant SecretaryOSHA RECORDKEEPINGHANDBOOK33

Letters of interpretation related to sections 1904.5(a), 1904.5(b) and 1904.5(b)(3) –Clarification on determining if an injury or illness is work-related and the recordability of the administrationof oxygen.November 19, 2002Baruch Fellner, Esq.Gibson, Dunn & Crutcher LLP1050 Connecticut Ave., N.W.Washington, D.C. 20036-5306Re: December 12, 2001 Recordkeeping TrainingDear Mr. Fellner:This is in response to your letter to Joseph Woodward dated January 15, 2002 regarding OSHA’sDecember 12, 2001 recordkeeping training broadcast. Your letter has been referred to me for responsebecause it involves interpretation of the new recordkeeping rule. Your letter questions the accuracy of theon-the-air responses given to two questions phoned in during the broadcast and expresses concern thatcertain interpretations of the recordkeeping rule reflected in the settlement agreement in the NAM v. Chaolitigation have not been explicitly incorporated into OSHA’s training and outreach materials. After reviewingthe transcript of the broadcast and the content of the other web-based training materials, I agree thatit would be useful to supplement or clarify some information provided, as discussed below.§1904.5First, during the broadcast, a caller asked the following question: “If an employee is simply walking downa hallway and let’s say that there is no pre-existing injury and they simply just pull a muscle in their legwhile they’re walking down, is that considered work related? ” One of the OSHA panelists answered:You know, what we have is we have a presumption of work relationship if it occurs from an event orexposure within the work environment. So, this person is walking down the hall and, if there is noevent or exposure that led to the condition, then I don’t think that presumption would apply. Do youagree with that, Jim?The second OSHA panelist responded: “It sounds like a work-related case to me. I mean, it sounds likethe person was injured while they were in the work environment and, yeah, I would consider that awork-related case.”As the differing responses given by the panelists may suggest, the question as posed provides too littleinformation about the factual context of the injury to make a conclusive determination about causation.We therefore believe that the most helpful way to clarify the response is to set forth the principles thatshould be followed in determining whether an injury is work-related. Under the recordkeeping rule, aninjury or illness is presumed work-related if (and only if) an event or exposure in the work environment isa discernable cause of the injury or illness or a significant aggravation to a pre-existing condition. Thework event or exposure need only be one of the discernable causes; it need not be the sole or predominantcause (§29 CFR 1904.5(a); Compliance Directive Chapter. 2, Sec. IC). As a corollary, the rule recognizesthat a case is not recordable if it involves signs or symptoms that surface at work but result solely from anon-work-related event or activity that occurs outside the work environment (§29 CFR 1904.5(b);Compliance Directive Chapter. 2, Sec. IC). The rule also provides guidance for situations in which it is notclear which of these categories an injury falls into. If it is not obvious whether the precipitating eventoccurred in the work environment or elsewhere, the employer is to evaluate the employee’s work dutiesand environment and make a determination whether it is more likely than not that work events or exposureswere a cause of the injury or illness or of a significant aggravation of a pre-existing condition (§29CFR 1904.5(b)(3)). The employer may consult a health care professional for assistance in making thisdetermination if it wishes.34OSHA RECORDKEEPINGHANDBOOK

These principles should be applied to the question posed. If it is obvious in context that walking or someother work event or exposure was a cause of the injury, the case is work-related. If it is obvious workevents or exposures were not a cause, but rather symptoms surfaced at work but resulted solely from nonwork-relatedactivities, the case is not work-related. If it is unclear, the employer should evaluate theemployee’s work duties and environment and determine whether it is more likely than not that work eventsor exposures were a cause. OSHA will post a clarification of its answer to this question on its web page.Second, later in the broadcast, a caller asked the following question: “If oxygen is given by emergencyresponse personnel on the way to the hospital, is that considered to be OSHA recordable, if he does not haveany medical treatment at the hospital?” The OSHA panelist answered, “Under the new rule, oxygen is consideredmedical treatment. So, if the person has an injury or illness, you know, if they’re exhibiting some signs ofdifficulty and they’re given oxygen, then that’s now considered medical treatment (emphasis added).”Contrary to your reading, I do not understand the question to assume that no injury or illness requiringmedical treatment was present; rather, the question is whether the administration of oxygen is medicaltreatment that makes a case recordable. The question and answer, reasonably read together, indicate thata case is recordable if an employee with a work-related injury or illness is given oxygen in an ambulanceon the way to the hospital, even though no further medical treatment is provided at the hospital. I believethat this information is accurate as it stands. However, to avoid any possibility of confusion, I have recommendedthat the training given to compliance officers emphasize that employees must have sustainedan injury or illness, as defined by the recordkeeping rule, before the administration of oxygen, or anyother medical treatment, makes the case recordable.Finally, I have discussed your general comments about the training materials with other responsible officialsin the agency. OSHA agrees it would be helpful to include references to the compliance directive. It isappropriate that interpretive language in the settlement agreement be reflected in the Agency’s trainingmaterials, such as the Power Point slides, where such incorporation would be relevant and useful.The Associate Solicitor for Occupational Safety and Health has reviewed this letter and agrees that theAgency’s position is consistent with the settlement agreement in NAM v. Chao.The Office of Training and Education is reviewing the recordkeeping training and outreach materials andwill make all necessary revisions as soon as possible.Thank you for bringing this matter to the Agency’s attention. I hope I addressed all of your issues andconcerns.§1904.5Sincerely,Frank Frodyma, Acting DirectorOSHA Directorate of Evaluation and AnalysisOSHA RECORDKEEPINGHANDBOOK35

November 19, 2002Joseph Woodward, Esq.Associate Solicitor for the Occupational Safety and Health AdministrationDepartment of LaborOffice of the Solicitor200 Constitution Avenue, NW, Room S-4004Washington, DC 20210Re: December 12, 2001 OSHA Recordkeeping TrainingWhile we very much appreciate the proactive efforts being made by the agency to provide trainingas it implements the new rule, I am writing on behalf of NAM to express my concern that theDepartment of Labor’s keynote training presentation regarding the new recordkeeping rule, itsDecember 12, 2001 satellite “webcast,” contained information inconsistent with our settlementagreement and omitted information central to that agreement.§1904.5First, as you know, an injury or illness is not presumed to be work-related unless “an event orexposure in the work environment is a discernable cause of the injury or illness or of a significantaggravation to a pre-existing condition.” See, inter alia, Settlement Agreement section 2(B) (emphasisadded). The Settlement Agreement restates this important principle: “Regardless of where signsor symptoms surface, a case is recordable only if a work event or exposure is a discernible cause ofthe injury or illness or of a significant aggravation to a pre-existing condition.” Id. (emphasisadded). In other words, it is not the location where signs or symptoms surface, it is the discerniblework-related event that defines causation and triggers recordation. In response to a questionregarding a pulled muscle that occurred in the workplace, but with which no identifiable workrelatedevent or exposure could be identified, the representative from OSHA’s Office of Statisticscorrectly noted that “if there is no event or exposure that led to the condition, I don’t think thatpresumption [of work-relatedness] would apply.” Transcript at pp. 44-45.* Another authoritativeOSHA spokesperson, however, disagreed with his colleague and stated, “It sounds like a workrelated case to me. It sounds like the person was injured while they were in the work environmentand, yeah, I would consider that a work related case.” Id. at p. 45 (emphasis added). I am concernedthat this response and OSHA’s training materials impart an erroneous view of the so-calledgeographic presumption. Unfortunate events which occur to an individual while he is at work andengaged in normal life functions, such as walking over an even surface and pulling a muscle,should not be presumed to be work-related simply because they occur at work. Absent some otheridentifiable work-related event or exposure in the work environment, such a conclusion clearlyconflicts with the “discernable cause” rule to which OSHA agreed in the settlement. Any trainingto the contrary ignores the agreement’s imposition on the Secretary of Labor the burden of proofregarding work-relatedness and is contrary to its substantive provisions.Second, our settlement agreement clearly specifies that the existence of an injury or illness is athreshold inquiry and that, even where, for example, oxygen is administered, in the context ofworkplace exposure to a toxic substance, if an injury or illness did not occur, the case remains nonrecordable.See Settlement Agreement at sections 2(E), (F); accord Transcript at p. 86 (discussingnon-recordability of precautionary administration of antibiotics). In response to a question relatingto this specific issue, which assumed the prophylactic administration of oxygen without any toxicexposure or medical treatment, however, OSHA’s spokesperson replied that, “Under the new rule,oxygen is considered medical treatment. So if the person has an injury or illness ... if they’reexhibiting some signs of difficulty and they’re given oxygen, then that’s now considered medicaltreatment.” Transcript at p. 46 (emphasis added).* The transcript of the training session is available athttp://www.vodium.com/vs_data/transcript/labor8NG8Y91T.txt.36OSHA RECORDKEEPINGHANDBOOK

The problem with the response is two-fold: (1) It ignores the question’s assumption that no injuryor illness requiring medical treatment was present and (2) it equates “some sign of difficulty” withan illness or injury. As you know, the settlement expressly states that an employee must exhibitsymptoms of an injury or illness in order for the administration of oxygen to constitute recordablemedical treatment. Settlement Agreement at section 2(F). “Some signs of difficulty,” particularly inthe absence of any medical treatment, would not necessarily constitute “symptoms of an injury orillness.” For example; a professional football player who leaves the field winded and who takes abreath of oxygen might be experiencing “some signs of difficulty” but might not be suffering from“symptoms of an injury or illness.” Thus, the answer to the question as posed should have clearlybeen that the administration of oxygen, absent other medical treatment or related injury or illness,is not recordable. Without further clarification, I am concerned that the OSHA reply might haveled participants to conclude that almost all administrations of oxygen are presumptively recordablecases.Third, I am generally concerned that OSHA’s training materials (including the satellite presentationand the materials contained on OSHA’s web site) completely omit any reference to a number of significantinterpretations in the settlement agreement. For example, neither the satellite training northe Power Point “Comprehensive Presentation” on OSHA’s web site address the preventive transferissue, an important clarification contained in our settlement agreement. See Settlement Agreementat section 2(C). I respectfully suggest that this issue should be discussed in order to provide fullcontext for any understanding of restricted work. The training materials also fail to discuss the“discernable cause” concept, and the “more likely than not” analysis employed when causation isunclear. Instead, the materials leave the regulated community with the misimpression that unless“symptoms arising in [the] work environment are solely due to [a] non-work-related event or exposure,”they are otherwise recordable. See Comprehensive Presentation at Slide 16 (emphasisadded); see also id. at Slide 13 (restating geographic presumption without clarification from settlementagreement). Appropriate clarification would have resolved the confusion attendant to the firstissue described above. Additionally, the discussion of hearing loss causation at pages 63 to 64 ofthe satellite training transcript would have been an appropriate point at which to apply these principles.Finally, we believe that future training should identify the compliance directive, which incorporatesthe settlement agreement, as an important source of clarification for recordkeeping questions. Forexample, at pages 77, 78, 90 and 91, the trainers identified a number of sources of information,but did not mention the compliance directive.§1904.5Our principal concern is that if these issues are not presented clearly during OSHA’s primary trainingsessions, they will not be executed properly by OSHA’s field staff. OSHA’s compliance officerswill provide advice and issue citations based upon an erroneous understanding of these criticalissues, and theprinciples embodied in the compliance directive will not be consistently and correctlyapplied throughout the nation.Thank you for your consideration of my thoughts. I appreciate the opportunity to engage in a constructivedialogue as employees, employers and OSHA work together to implement the new rule.Sincerely,Baruch A. Fellnercc: The Honorable John HenshawThe Honorable Christopher SpearMr. Tevi TroyOSHA RECORDKEEPINGHANDBOOK37

Letter of interpretation related to sections 1904.5(a), 1904.5(b)(3) and 1904.5(b)(4) –OSHA’s no-fault recordkeeping system requires recording work-related injuries and illnesses, regardless ofthe level of employer control or non-control involved.February 6, 2002Beth NelsonState of WyomingDepartment of EmploymentCheyenne Business Center1510 East Pershing Blvd.Cheyenne, Wyoming 82002Dear Ms. Nelson:This is in response to your letter dated August 14, 2002. Thank you for your comments pertainingto the Occupational Safety and Health Administration’s (OSHA) Injury and Illness Recording andReporting Requirements contained in 29 CFR Part 1904.OSHA revised its injury and illness recordkeeping requirements under the following rulemakingprocedures. On February 2, 1996, the agency published a notice of proposed rulemaking (NPRM)requesting public comment on the proposed revision to the recordkeeping requirements. OSHAreceived more than 450 comments and held six days of public meetings. OSHA analyzed all informationfrom the public meetings and developed its final rule based upon that analysis. On January19, 2001, OSHA published its final rule.§1904.5Specifically, you ask OSHA to reconsider requiring employers to record and report work-relatedfatalities, injuries and illnesses incurred due to no fault of the employer or employee. You also providean example of a case that illustrates your concerns. We are assuming that the auto accident inyour example meets OSHA’s definition of work-relatedness. In the final rule, OSHA notes thatmany circumstances that lead to a recordable work-related injury or illness are “beyond theemployer’s control.” Nevertheless, because such an injury or illness was caused, contributed to, orsignificantly aggravated by an event or exposure at work, it must be recorded on the OSHA form(assuming that it meets one or more of the recording criteria and does not qualify for an exceptionto the geographic presumption). This approach is consistent with the no-fault recordkeeping systemOSHA has historically adopted, which includes work-related injuries and illnesses, regardless of thelevel of employer control or non-control involved. The concept of fault has never been a considerationin any recordkeeping system of the U.S. Department of Labor. Both the Note to Subpart A ofthe final rule and the new OSHA Form 300 expressly state that recording a case does not indicatefault, negligence, or compensability. In addition, OSHA recognizes that injury and illness rates donot necessarily indicate a lack of interest in safety and health or success or failure per se. OSHAfeels it is to the benefit of all parties to go beyond the numbers and look at an employer’s safetyand health program.I hope that you find this information useful. Thank you for your interest in occupational safety andhealth and OSHA. If you have any further questions, please contact the Division of RecordkeepingRequirements, at 202-693-1702.Sincerely,John L. Henshawcc: Adam Finkel, Regional AdministratorSteve Foster, Wyoming OSHA Program Manager38OSHA RECORDKEEPINGHANDBOOK

Section 1904.6Determination of new cases(66 FR 6123, Jan. 19, 2001)REGULATION: Section 1904.6Subpart C – Recordkeeping forms and recording criteria (66 FR 6123, Jan. 19, 2001)Note to Subpart C: This Subpart describes the work-related injuries and illnesses that an employer mustenter into the OSHA records and explains the OSHA forms that employers must use to record work-relatedfatalities, injuries, and illnesses.Section 1904.6 Determination of new cases(a) Basic requirement.You must consider an injury or illness to be a“new case” if:(1) The employee has not previously experienceda recorded injury or illness of the same type thataffects the same part of the body, or(2) The employee previously experienced a recordedinjury or illness of the same type that affected thesame part of the body but had recovered completely(all signs and symptoms had disappeared) from theprevious injury or illness and an event or exposure inthe work environment caused the signs or symptomsto reappear.(b) Implementation.(1) When an employee experiences the signs orsymptoms of a chronic work-related illness, do I needto consider each recurrence of signs or symptoms tobe a new case?No, for occupational illnesses where the signs orsymptoms may recur or continue in the absence ofan exposure in the workplace, the case must only berecorded once. Examples may include occupationalcancer, asbestosis, byssinosis and silicosis.(2) When an employee experiences the signs orsymptoms of an injury or illness as a result of anevent or exposure in the workplace, such as anepisode of occupational asthma, must I treat theepisode as a new case?Yes, because the episode or recurrence wascaused by an event or exposure in the workplace, theincident must be treated as a new case.(3) May I rely on a physician or other licensedhealth care professional to determine whether a caseis a new case or a recurrence of an old case?You are not required to seek the advice of a physicianor other licensed health care professional.However, if you do seek such advice, you must followthe physician or other licensed health care professional’srecommendation about whether the caseis a new case or a recurrence. If you receive recommendationsfrom two or more physicians or otherlicensed health care professionals, you must make adecision as to which recommendation is the mostauthoritative (best documented, best reasoned, ormost authoritative), and record the case based uponthat recommendation.§1904.6PREAMBLE DISCUSSION: Section 1904.6(66 FR 5962-5967, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.6 Determination of new casesEmployers may occasionally have difficulty in determiningwhether new signs or symptoms are due to anew event or exposure in the workplace or whetherthey are the continuation of an existing work-relatedinjury or illness. Most occupational injury and illnesscases are fairly discrete events, i.e., events in whichan injury or acute illness occurs, is treated, and thenresolves completely. For example, a worker may suffera cut, bruise, or rash from a clearly recognizedevent in the workplace, receive treatment, and recoverfully within a few weeks. At some future time, theworker may suffer another cut, bruise or rash fromanother workplace event. In such cases, it is clearOSHA RECORDKEEPINGHANDBOOK39

§1904.6that the two injuries or illnesses are unrelated events,and that each represents an injury or illness thatmust be separately evaluated for its recordability.However, it is sometimes difficult to determinewhether signs or symptoms are due to a new eventor exposure, or are a continuance of an injury or illnessthat has already been recorded. This is animportant distinction, because a new injury or illnessrequires the employer to make a new entry on theOSHA 300 Log, while a continuation of an old recordedcase requires, at most, an updating of the originalentry. Section 1904.6 of the final rule being publishedtoday explains what employers must do to determinewhether or not an injury or illness is a new casefor recordkeeping purposes.The basic requirement at Section 1904.6(a) statesthat the employer must consider an injury or illness anew case to be evaluated for recordability if (1) theemployee has not previously experienced a recordedinjury or illness of the same type that affects thesame part of the body, or (2) the employee previouslyexperienced a recorded injury or illness of thesame type that affected the same part of the bodybut had recovered completely (all signs and symptomsof the previous injury or illness had disappeared)and an event or exposure in the work environmentcaused the injury or illness, or its signs orsymptoms, to reappear.The implementation question at Section1904.6(b)(1) addresses chronic work-related casesthat have already been recorded once and distinguishesbetween those conditions that will progresseven in the absence of workplace exposure andthose that are triggered by events in the workplace.There are some conditions that will progress even inthe absence of further exposure, such as some occupationalcancers, advanced asbestosis, tuberculosisdisease, advanced byssinosis, advanced silicosis, etc.These conditions are chronic; once the disease iscontracted it may never be cured or completelyresolved, and therefore the case is never “closed”under the OSHA recordkeeping system, even thoughthe signs and symptoms of the condition may alternatebetween remission and active disease.However, there are other chronic work-related illnessconditions, such as occupational asthma, reactiveairways dysfunction syndrome (RADs), and sensitization(contact) dermatitis, that recur if the ill individualis exposed to the agent (or agents, in the caseof cross-reactivities or RADs) that triggers the illnessagain. It is typical, but not always the case, for individualswith these conditions to be symptom-free ifexposure to the sensitizing or precipitating agentdoes not occur.The final rule provides, at paragraph (b)(1), thatthe employer is not required to record as a new casea previously recorded case of chronic work-related illnesswhere the signs or symptoms have recurred orcontinued in the absence of exposure in the workplace.This paragraph recognizes that there are occupationalillnesses that may be diagnosed at somestage of the disease and may then progress withoutregard to workplace events or exposures. Such diseases,in other words, will progress without furtherworkplace exposure to the toxic substance(s) thatcaused the disease. Examples of such chronic workrelateddiseases are silicosis, tuberculosis, andasbestosis. With these conditions, the ill worker willshow signs (such as a positive TB skin test, a positivechest roentgenogram, etc.) at every medical examination,and may experience symptomatic bouts asthe disease progresses.Paragraph 1904.6(b)(2) recognizes that manychronic occupational illnesses, however, such as occupationalasthma, RADs, and contact dermatitis, aretriggered by exposures in the workplace. Thedifference between these conditions and thoseaddressed in paragraph 1904.6(b)(1) is that in thesecases exposure triggers the recurrence of symptomsand signs, while in the chronic cases covered in theprevious paragraph, the symptoms and signs recureven in the absence of exposure in the workplace.This distinction is consistent with the position takenby OSHA interpretations issued under the formerrecordkeeping rule (see the Guidelines discussionbelow). The Agency has included provisions related tonew cases/continuations of old cases in the final ruleto clarify its position and ensure consistent reporting.Paragraph 1904.6(b)(3) addresses how to record acase for which the employer requests a physician orother licensed health care professional (HCP) to makea new case/continuation of an old case determination.Paragraph (b)(3) makes clear that employers areto follow the guidance provided by the HCP forOSHA recordkeeping purposes. In cases where twoor more HCPs make conflicting or differing recommendations,the employer is required to base his orher decision about recordation based on the mostauthoritative (best documented, best reasoned, ormost persuasive) evidence or recommendation.The final rule’s provisions on the recording of newcases are nearly identical to interpretations of newcase recordability under the former rule. OSHA hashistorically recognized that it is generally an easiermatter to differentiate between old and new casesthat involve injuries than those involving illnesses:40OSHA RECORDKEEPINGHANDBOOK

the Guidelines stated that “the aggravation of a previousinjury almost always results from some newincident involving the employee * * * [w]hen workrelated,these new incidents should be recorded asnew cases on the OSHA forms, assuming they meetthe criteria for recordability * * *” (Ex. 2, p. 31).However, the Guidelines also stated that “certain illnesses,such as silicosis, may have prolonged effectswhich recur over time. The recurrence of thesesymptoms should not be recorded as a new case onthe OSHA forms. * * * Some occupational illnesses,such as certain dermatitis or respiratory conditions,may recur as the result of new exposures to sensitizingagents, and should be recorded as new cases.” ……In the final rule, OSHA has decided against theproposed approach of determining case resolutionbased on a certain number of days during which theinjured or ill employee did not lose time, receivetreatment, have signs or symptoms, or be restrictedto light duty. OSHA agrees with those commenterswho argued that the proposed approach was too prescriptiveand did not allow for the variations that naturallyexist from one injury and illness case to thenext. Further, the record contains no convincing evidenceto support a set number of days as appropriate.OSHA thus agrees with those commenters whopointed out that adoption of a fixed time intervalwould result in the overrecording of some injury andillness cases and the underrecording of others, andthus would impair the quality of the records.Further, OSHA did not intend to create an “injuryfree” time zone during which an injury or illnesswould not be considered a new case, regardless ofcause, as . . . suggested. Instead, OSHA proposedthat a case be considered a new case if either conditionapplied: the case resulted from a new event orexposure or 45 days had elapsed without signs,symptoms, or medical treatment, restricted work, ordays away from work. There are clearly cases wherean event or exposure in the workplace would because for recording a new case. A new injury maymanifest the same signs and symptoms as the previousinjury but still be a new injury and not a continuationof the old case if, for example, an employeesustains a fall and fractures his or her wrist, and fourmonths later falls again and fractures the wrist in thesame place. This occurrence is not a continuation ofthe fracture but rather a new injury whose recordabilitymust be evaluated. The final rule’s approach torecurrence/new case determinations avoids this andother recording problems because it includes no daycount limit and relies on one of the basic principlesof the recordkeeping system, i.e., that injuries or illnessesarising from events or exposures in the workplacemust be evaluated for recordability.In response to those commenters who raisedissues about inconsistency between the OSHA systemand workers’ compensation, OSHA notes thatthere is no reason for the two systems, which servedifferent purposes (recording injuries and illnessesfor national statistical purposes and indemnifyingworkers for job-related injuries and illnesses) to usethe same definitions. Accordingly, the final rule doesnot rely on workers’ compensation determinations toidentify injuries or illness cases that are to be considerednew cases for recordkeeping purposes….…OSHA has not included any provisions in thefinal rule that require an employer to rely on a physicianor other licensed health care professional or thattell a physician or other licensed health care professionalhow to treat an injured or ill worker, or whento begin or end such treatment. In the final ruleOSHA does require the employer to follow any determinationa physician or other licensed health careprofessional has made about the status of a newcase. That is, if such a professional has determinedthat a case is a new case, the employer must recordit as such. If the professional determines that thecase is a recurrence, rather than a new case, theemployer is not to record it a second time. In addition,the rule does not require the employee, or theemployer, to obtain permission from the physician orother licensed health care professional before theemployee can return to work. OSHA believes that theemployer is capable of, and often in the best positionto, make return-to-work decisions….…”A recurrence of a previous work-related injuryor illness should only be considered a new case whenthe injury or illness has completely healed. Severemuscle and nerve damage can take many weeks ormonths to properly heal.” The final rule takes suchdifferences into account, as follows. If the previousinjury or illness has not healed (signs and symptomshave not resolved), then the case cannot be consideredresolved. The employer may make this determinationor may rely on the recommendation of a physicianor other licensed health care professional whendoing so. Clearly, if the injured or ill employee is stillexhibiting signs or symptoms of the previous injuryor illness, the malady has not healed, and a new casedoes not have to be recorded. Similarly, if work activitiesaggravate a previously recorded case, there is noneed to consider recording it again (although theremay be a need to update the case information if theaggravation causes a more severe outcome than theoriginal case, such as days away from work)….§1904.6OSHA RECORDKEEPINGHANDBOOK41

§1904.6…Under the OSHA recordkeeping system, theemployer is always the responsible party when itcomes to making the determination of the recordabilityof a given case. However, if OSHA did not establishconsistent new case determination criteria, asubstantial amount of variability would be introducedinto the system, which would undermine theAgency’s goals of improving the accuracy and consistencyof the Nation’s occupational injury and illnessdata….…”[A]dopt a definition for new case that requiresthe occurrence of a new work-related event to triggera new case. In the absence of this, the case would beconsidered recurring.” …OSHA agrees… that if nofurther event or exposure occurs in the workplace toaggravate a previous injury or illness, a new caseneed not be recorded. However, if events or exposuresat work cause the same symptoms or signs torecur, the final rule requires employers to evaluatethe injury or illness to see if it is a new case and isthus recordable.The OSHA statistical system is designed to measurethe incidence, rather than prevalence, of occupationalinjury and illness. Incidence measures capturethe number of new occupational injuries and illnessesoccurring in a given year, while prevalence measurescapture the number of such cases existing in agiven year (prevalence measures thus capture caseswithout regard to the year in which they onset).Prevalence measures would therefore capture allinjuries and illnesses that occurred in a given year aswell as those unresolved injuries and illnesses thatpersist from previous years. The difference is illustratedby the following cases: (1) A worker experiencesa cut that requires sutures and heals completelybefore the year ends; this injury would be capturedboth by an incidence or prevalence measure for thatparticular year. (2) Another worker retired last yearbut continues to receive medical treatment for awork-related respiratory illness that was first recognizedtwo years ago. This case would be captured inthe year of onset and each year thereafter until itresolves if a prevalence measure is used, but wouldbe counted only once (in the year of onset) if an incidencemeasure is used.Because the OSHA system is intended to measurethe incidence of occupational injury and illness, eachindividual injury or illness should be recorded onlyonce in the system. However, an employee can experiencethe same type of injury or illness more thanonce. For example, if a worker cuts a finger on amachine in March, and is then unfortunate enough tocut the same finger again in October, this worker hasclearly experienced two separate occupationalinjuries, each of which must be evaluated for itsrecordability. In other cases, this evaluation is not assimple. For example, a worker who performs forcefulmanual handling injures his or her back in 1998,resulting in days away from work, and the case isentered into the records. In 1999 this worker hasanother episode of severe work-related back pain andmust once again take time off for treatment and recuperation.The question is whether or not the newsymptoms, back pain, are continuing symptoms ofthe old injury, or whether they represent a new injurythat should be evaluated for its recordability as anew case. The answer in this case lies in an analysisof whether or not the injured or ill worker has recoveredfully between episodes, and whether or not theback pain is the result of a second event or exposurein the workplace, e.g., continued manual handling. Ifthe worker has not fully recovered and no new eventor exposure has occurred in the workplace, the caseis considered a continuation of the previous injury orillness and is not recordable….…The term “new case” tends to suggest to somethat the case is totally original, when in fact newcases for OSHA recordkeeping purposes includethree categories of cases; (1) totally new cases wherethe employee has never suffered similar signs orsymptoms while in the employ of that employer, (2)cases where the employee has a preexisting conditionthat is significantly aggravated by activities atwork and the significant aggravation reaches thelevel requiring recordation, and (3) previously recordedconditions that have healed (all symptoms andsigns have resolved) and then have subsequentlybeen triggered by events or exposures at work.Under the former rule and the final rule, both newinjuries and recurrences must be evaluated for theirwork-relatedness and then for whether they meetone or more of the recording criteria; when these criteriaare met, the case must be recorded. If the caseis a continuation of a previously recorded case butdoes not meet the “new case” criteria, the employermay have to update the OSHA 300 Log entry if theoriginal case continues to progress, i.e., if the statusof the case worsens. For example, consider a casewhere an employee has injured his or her back liftinga heavy object, the injury resulted in medical treatment,and the case was recorded as a case withoutrestricted work or days away. If the injury does notheal and the employer subsequently decides toassign the worker to restricted work activity, theemployer is required by the final rule to change thecase classification and to track the number of days of42OSHA RECORDKEEPINGHANDBOOK

estricted work. If the case is a previous work-relatedinjury that did not meet the recording criteria andthus was not recorded, future developments in thecase may require it to be recorded. For example, anemployee may suffer an ankle sprain tripping on astep. The employee is sent to a health care professional,who does not recommend medical treatmentor restrictions, so the case is not recorded at thattime. If the injury does not heal, however, and a subsequentvisit to a physician results in medical treatment,the case must then be recorded….…In other words, a safety and health analysisshould give less weight to an injury or illness thathas a clear and relatively quick recovery withoutimpairment of any kind and an injury or illness that ischronic in nature or one that involves recurringepisodes that are retriggered by workplace events orexposures.Ignoring the fact that an occupational injury or illnessis a recurrence occasioned by an event or exposurein the workplace would result in an underestimateof the true extent of occupational injury and illnessand deprive employers, employees, and safetyand health professionals of essential information ofuse in illness prevention. The other extreme, requiringemployers to record on-going signs or symptomsrepeatedly, even in the absence of an event or exposurein the workplace, would result in overstating theextent of illness. In terms of the recordkeeping system,deciding how most appropriately to handle newcases requires a balanced approach that minimizesboth overrecording and underrecording. OSHA hasdealt with this problem in the final rule by carefullydefining the circumstances under which a chronicand previously recorded injury or illness must beconsidered closed and defining the circumstancesunder which a recurrence is to be considered a newcase and then evaluated to determine whether itmeets one or more of the recordability criteria….…The final rule uses one set of criteria for determiningwhether any injury or illness, including amusculoskeletal disorder, is to be treated as a newcase or as the continuation of an “old” injury or illness.First, if the employee has never had a recordedinjury or illness of the same type and affecting thesame part of the body, the case is automaticallyconsidered a new case and must be evaluated forrecordability. This provision will handle the vastmajority of injury and illness cases, which are newcases rather than recurrences or case continuations.Second, if the employee has previously had a recordedinjury or illness of the same type and affecting thesame body part, but the employee has completelyrecovered from the previous injury or illness, and anew workplace event or exposure causes the injuryor illness (or its signs or symptoms) to reappear, thecase is a recurrence that the employer must evaluatefor recordability.The implementation section of Section 1904.6describes these requirements and includes explanationsapplying to two special circumstances. In thefirst case, paragraph 1904.6(b)(1) the employee hasexperienced a chronic injury or illness of a type thatwill progress regardless of further workplace exposure.Cases to which this provision applies are serious,chronic illness conditions such as occupationalcancer, asbestosis, silicosis, chronic beryllium disease,etc. These occupational conditions generallycontinue to progress even though the worker isremoved from further exposure. These conditionsmay change over time and be associated with recurrencesof symptoms, or remissions, but the signs(e.g., positive chest roentgenogram, positive bloodtest) generally continue to be present throughout thecourse of the disease.The second kind of case, addressed in paragraph1904.6(b)(b)(2), requires employers to record chronicillness cases that recur as a result of exposures in theworkplace. These conditions might include episodesof occupational asthma, reactive airways dysfunctionsyndrome (RADS), or contact allergic dermatitis, forexample.Paragraph 1904.6(b)(3) recognizes the role ofphysicians and other licensed health care professionalsthat the employer may choose to rely on whentracking a “new case” or making a continuation of anold case determination. If a physician or otherlicensed health care professional determines that aninjury or illness has been resolved, the employermust consider the case to be resolved and record asa new case any episode that causes the signs andsymptoms to recur as a result of exposure in theworkplace. On the other hand, if the HCP consultedby the employer determines that the case is a chronicillness of the type addressed by paragraph1904.6(b)(1), the employer would not record the caseagain. In either case, the employer would evaluate itfor work-relatedness and then determine whether theoriginal entry requires updating or the case meetsthe recording criteria. Paragraph (b)(3) also recognizesthat the employer may ask for input from morethan one HCP, or the employer and employee mayeach do so, and in such cases, the rule requires theemployer to rely on the one judged by the employerto be most authoritative.§1904.6OSHA RECORDKEEPINGHANDBOOK43

FREQUENTLY ASKED QUESTIONS: Section 1904.6 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.6 Determination of new casesQuestion 6-1. How is an employer to determinewhether an employee has “recovered completely”from a previous injury or illness such that a laterinjury or illness of the same type affecting the samepart of the body resulting from an event or exposureat work is a “new case” under section 1904.6(a)(2)? Ifan employee’s signs and symptoms disappear for aday and then resurface the next day, should theemployer conclude that the later signs and symptomsrepresent a new case?An employee has “recovered completely” from aprevious injury or illness, for purposes of section1904.6(a)(2), when he or she is fully healed or cured.The employer must use his best judgment based onfactors such as the passage of time since the symptomslast occurred and the physical appearance ofthe affected part of the body. If the signs and symptomsof a previous injury disappear for a day only toreappear the following day, that is strong evidencethe injury has not properly healed. The employermay, but is not required to, consult a physician orother licensed health care provider (PLHCP). Wherethe employer does consult a PLHCP to determinewhether an employee has recovered completely froma prior injury or illness, it must follow the PLHCP’srecommendation. In the event the employer receivesrecommendations from two or more PLHCPs, theemployer may decide which recommendation is themost authoritative and record the case based on thatrecommendation.LETTERS OF INTERPRETATION: Section 1904.6Section 1904.6 Determination of new casesLetter of interpretation related to sections 1904.5, 1904.5(a), 1904.5(b)(2), 1904.6, 1904.6(a), 1904.7 and 1904.31 –Evaluation of seven scenarios for work-relatedness and recordkeeping requirements.January 15, 2004§1904.6Ms. Leann M. Johnson-Koch1200 Nineteenth Street, N.W.Washington, D.C. 20036-2412Dear Ms. Johnson-Koch:Thank you for your E-mail to the Occupational Safety and Health Administration (OSHA) regardingthe Injury and Illness Recording and Reporting Requirements contained in 29 CFR Part 1904. Your letterwas forwarded to my office by Richard Fairfax, Director, Directorate of Enforcement Programs. TheDivision of Recordkeeping Requirements is responsible for the administration of the OSHA injury andillness recordkeeping system nationwide. Please excuse the delay in responding to your request.In your letter, you ask OSHA to clarify the following scenarios to ensure accurate and consistent guidanceto your members for purposes of OSHA Recordkeeping requirements. I will address your scenariosby first restating each one and then answering it.Scenario 1:• An employee reported to work at 7:00 a.m.• At 12:15 p.m. the employee reported that his toes on his left foot had started swelling and his foothad started hurting.• The employee wanted to go to a doctor for evaluation.• On the First Report of Injury, that the employee completed before he went to the doctor, the employeeindicated that the cause of the illness was “unknown (feet wet at cooling tower).”• When answering the doctor’s question: “How did injury occur?” the employee answered that the onlything he could think of was that his feet were wet all the previous day due to work in the morning at acooling tower. The cooling tower water is treated to remove bacteria and then used in process operationsin the plant.• The doctor described the illness/injury as foot edema/cellulitis.44OSHA RECORDKEEPINGHANDBOOK

• The doctor also prescribed the injury as an occupational disease, prescribed an antibiotic, and theemployee missed one day of work.• The company sent the employee to a second doctor who said to continue using the antibiotic.• Neither doctor could state conclusively that the foot edema/cellulitis was or was not due to theemployee’s feet being wet due to work at the cooling tower.• Neither doctor is a specialist in skin disorders.• During an incident review at the site, the employee again said he did not know if his feet being wet allday the previous day caused the injury/illness.• The employee also stated that he had not worn the personal protective equipment, rubber boots, prescribedfor this task.The company determined that this injury/illness is not work-related (did not occur in the course of or asa result of employment), since neither physician nor the employee can state with certainty that theinjury/illness was caused by the employee’s feet being wet all day due to work at the cooling tower. Sincethe injury/illness was determined to not be work-related, then the company deemed the incident nonrecordable.Response: A case is work-related if it is more likely than not that an event or exposure in the work environmentwas a cause of the injury or illness. The work event or exposure need only be one of the causes; it notneed to be the sole or predominant cause. In this case, the fact that neither the physician nor the employeecould state with certainty that the employee’s edema was caused by working with wet feet is not dispositive.The physician’s description of the edema as an “occupational disease,” and the employee’s statement thatworking with wet feet was “the only thing he could of” as the cause, indicate that it is more likely than notthat working with wet feet was a cause. The case should be recorded on the OSHA 300 Log.Scenario 2:An employee must report to work by 8:00 a.m.• The employee drove into the company parking lot at 7:30 a.m. and parked the car.• The employee exited the car and proceeded to the office to report to work.• The parking lot and sidewalks are privately owned by the facility and both are within the propertyline, but not the controlled access points (i.e., fence, guards).• The employee stepped onto the sidewalk and slipped on the snow and ice.• The employee suffered a back injury and missed multiple days of work.The company believes that the employee was still in the process of the commute to work since theemployee had not yet checked in at the office. Since a work task was not being performed, the site personneldeemed the incident not work-related and therefore not recordable.Response: Company parking lots and sidewalks are part of the employer’s establishment for recordkeepingpurposes. Here, the employee slipped on an icy sidewalk while walking to the office to report forwork. In addition, the event or exposure that occurred does not meet any of the work-related exceptionscontained in 1904.5(b)(2). The employee was on the sidewalk because of work; therefore, the case iswork-related regardless of the fact that he had not actually checked in.§1904.6Scenario 3:The employee described in Scenario 2 missed 31 days of work due to the back injury.• On day 31, the doctor provided a release for returning to work.• The next morning (day 32), when the employee was due to report to work, the employee stated thathis back was hurting, and the employee did not report to work.• The employee scheduled a doctor’s appointment, with the same doctor, and visited the doctor on day 33.• The doctor issued a statement stating that the employee was not able to return to work.Since the employee was released to return to work, the company does not believe it has to count theintervening two days on the OSHA log.Response: The employer would have to enter the additional days away from work on the OSHA 300 logbased on receiving information from the physician or other licensed health care professional that theemployee was unable to work.Scenario 4:• An employee reports to work.• Several hours later, the employee goes outside for a “smoke break.”• The employee slips on the ice and injures his back.OSHA RECORDKEEPINGHANDBOOK45

Since the employee was not performing a task related to the employee’s work, the company has deemedthis incident non-work related and therefore not recordable.Response: Under Section 1904.5(b)(2)(v), an injury or illness is not work-related if it is solely the resultof an employee doing personal tasks (unrelated to their employment) at the establishment outside of theemployee’s assigned working hours. In order for this exception to apply, the case must meet both of thestated conditions. The exception does not apply here because the injury or illness occurred within normalworking hours. Therefore, your case in question is work-related, and if it meets the general recording criteriaunder Section 1904.7 the case must be recorded.Scenario 5:• An employee drives into the company parking lot at 7:30 a.m., exits his car, and proceeds to cross theparking lot to clock-in to work.• A second employee, also on the way to work, approaches the first employee, and the two individualsget into a physical altercation in the parking lot. The first employee breaks an arm during the altercation.• The employee goes to the doctor and receives medical treatment for his injury.The company deems this non-work related, and therefore non-recordable, since the employees had notyet reported to work and a work task was not being performed at the time of the altercation.Response: The recordkeeping regulation contains no general exception for purposes of determiningwork-relationship for cases involving acts of violence in the work environment. Company parkinglots/access roads are part of the employer’s premises and therefore part of the employer’s establishment.Whether the employee had not clocked in to work does not affect the outcome for determining workrelatedness.The case is recordable on the OSHA log, because the injury meets the general recording criteriacontained in Section 1904.7.§1904.6Scenario 6:• An employee injured a knee performing work-related activities in 2001.• The accident was OSHA recordable and subject to worker’s compensation.• The employee had arthroscopic knee surgery eleven months later and was released to full duty amonth and a half after the arthroscopic surgery.• The employee had a second knee injury three months after the return to work release (after the firstsurgery).• Post-surgery (second surgery), the doctor prescribed Vioxx® as an anti-inflammatory.• Approximately one and one-half months after the second knee surgery, the employee was given anotherfull release to return to work full duty and returned to work.• However, the doctor told the employee to continue to take Vioxx® as prescribed (as needed) and toreturn to the doctor as needed.• The employee scheduled a follow-up appointment with the doctor.• The day before the appointment, the employee bumped his knee at work.• During his scheduled doctor’s appointment (was to be the last follow-up visit) the employee mentionedthe latest incident (bumping the knee) to the doctor and showed him where the pain was occurring dueto bumping his knee.• The doctor stated that the employee had an inflamed tendon (Grade 1 lateral collateral ligamentsprain) that was not part of the initial surgery (patellar tendonitis).• The doctor stated in the diagnosis that the original injury that required knee surgery was resolved.• The doctor told the employee to continue taking Vioxx® for the inflamed tendon.Since the employee was already taking the medication prescribed (Vioxx®), the site does not believe thisis recordable as a second incident.Response: In the recordkeeping regulation, the employer is required to follow any determination a physicianor other licensed health care professional has made about the status of a new case. The inflamedtendon is a new case because the employee had completely recovered from the previous injury and illnessand a new event or exposure had occurred in the work environment. Therefore, for purposes of OSHArecordkeeping, the employer would enter the case on the OSHA 300 log as appropriate.Scenario 7:• A site hired numerous temporary workers at its plant.• Three temporary workers were injured.• They each received injuries that were recordable on the OSHA 300 Log.46OSHA RECORDKEEPINGHANDBOOK

• The employees were under the direct supervision of the site.Is it correct that these injuries were recordable on the site log or should they have been recordable on thetemp agency log? What are the criteria related to temporary workers that need to be reviewed to determinewhich OSHA log is appropriate for recording the injury/illness?Response: Section 1904.31 states that the employer must record the injuries and illnesses that occur toemployees not on its payroll if it supervises them on a day-to-day basis. Day-to-day supervision generallyexists when the employer “supervises not only the output, product, or result to be accomplished by theperson’s work, but also the details, means, methods, and processes by which the work objective isaccomplished.”Thank you for your interest in occupational safety and health. We hope you find this information helpful.OSHA requirements are set by statute, standards and regulations. Our interpretation letters explainthese requirements and how they apply to particular circumstances, but they cannot create additionalemployer obligations. This letter constitutes OSHA’s interpretation of the requirements discussed. Notethat our enforcement guidance may be affected by changes to OSHA rules. In addition, from time totime we update our guidance in response to new information. To keep appraised of such developments,you can consult OSHA’s website at http://www.osha.gov. If you have any further questions, please contactthe Division of Recordkeeping Requirements, at 202-693-1702.Sincerely,Frank FrodymaActing DirectorLetter of interpretation related to sections 1904.5(a), 1904.5(b)(4) and 1904.6 –Determining work-relatedness when the work event or exposure is only one of the discernable causes; not thesole or predominant cause.January 13, 2004William K. PrincipeConstangy, Brooks & Smith, LLCSuite 2400230 Peachtree Street, N.W.Atlanta, Georgia 30303-1557§1904.6Dear Mr. Principe:Thank you for your comments pertaining to the Occupational Safety and Health Administration’s(OSHA) Injury and Illness Recording and Reporting requirements contained in 29 CFR Part 1904.Please accept my apology for the delay in our response.Specifically, you ask OSHA to clarify in each scenario you describe; whether the employee who sustainsan injury or illness while he or she is engaged in an activity such as walking or bending is consideredwork-related. As you note, a case is presumed work-related under the recordkeeping rule ifan event or exposure in the work environment is a discernable cause of the injury or illness. Thework event or exposure need only be one of the discernable causes; it need not be the sole or predominantcause. The preamble to the rule contains a passage that is relevant in determiningwhether this presumption applies in the scenarios in your letter. The preamble states, in relevantpart, as follows:In applying [the presumption of work-relatedness], the question employers must answer iswhether there is an identifiable event or exposure which occurred in the work environment andresulted in the injury or illness. “Thus, if an employee trips while walking across a level factoryfloor, the resulting injury is considered work-related under the geographic presumption becausethe precipitating event - the tripping accident - occurred in the workplace. The case is workrelatedeven if the employer cannot determine why the employee tripped, or whether any particularworkplace hazard caused the accident to occur.”OSHA RECORDKEEPINGHANDBOOK47

In each of the eight scenarios in your letter, the activity engaged in by the employee at the time ofthe injury (walking, tripping, climbing a staircase, sneezing, bending down) is an “event” whichwould trigger application of the presumption. In the absence of evidence to overcome the presumption,the injury is work-related. Thus, in the absence of evidence to overcome the presumption, anankle injury caused by a trip that occurred while the employee was walking down a level seamlesshallway at work is work-related, regardless of whether the accident is attributable to a defect in thehall. By the same reasoning, if the activity of walking down a hallway caused the employee’s kneeto buckle or to sprain the ankle, the injury is work-related. If an injury or illness did not resultfrom an identifiable event or exposure in the work environment, but only manifested itself duringwork, the injury is not work-related. For example, if the employee had a non-occupational event orexposure, and there is no evidence of a work-related event or exposure that was a cause of theinjury or illness, the injury should not be recorded.You also ask whether the determination of work-relationship would be affected by the existence ofa pre-existing condition, whether work-related or non-work-related, affecting the same body partthat is injured. Under the rule, a pre-existing condition is an injury or illness resulting solely from anon-work-related event or exposure. If an employee’s pre-existing condition is worsened as a resultof an event or exposure at work, the case is not work-related unless the work event or exposure“significantly aggravated” the preexisting condition (i.e., the case meets the recording criteria containedin Section 1904.5(b)(4). If the employee with a pre-existing work-related injury to a bodypart suffers a subsequent work-related injury of the same type to the same body part, the subsequentinjury is recordable (assuming the general recording criteria are met) if it is a “new case” asdiscussed in Section 1904.6.Thank you for your interest in occupational safety and health. We hope you find this informationhelpful. OSHA requirements are set by statute, standards and regulations. Our interpretation lettersexplain these requirements and how they apply to particular circumstances, but they cannot createadditional employer obligations. This letter constitutes OSHA’s interpretation of the requirementsdiscussed. Note that our enforcement guidance may be affected by changes to OSHA rules. In addition,from time to time we update our guidance in response to new information. To keep appraisedof such developments, you can consult OSHA’s website at http://www.osha.gov. If you have any furtherquestions, please contact the Division of Recordkeeping Requirements, at 202-693-1702.§1904.6Sincerely,Frank FrodymaActing DirectorDirectorate of Evaluation and Analysis48OSHA RECORDKEEPINGHANDBOOK

Section 1904.7General recording criteria(66 FR 6126, Jan. 19, 2001)REGULATION: Section 1904.7Subpart C – Recordkeeping forms and recording criteria (66 FR 6123, Jan. 19, 2001)Note to Subpart C: This Subpart describes the work-related injuries and illnesses that an employer mustenter into the OSHA records and explains the OSHA forms that employers must use to record work-relatedfatalities, injuries, and illnesses.Section 1904.7 General Recording Criteria(a) Basic requirement.You must consider an injury or illness to meet thegeneral recording criteria, and therefore to be recordable,if it results in any of the following: death, daysaway from work, restricted work or transfer to anotherjob, medical treatment beyond first aid, or loss ofconsciousness. You must also consider a case tomeet the general recording criteria if it involves a significantinjury or illness diagnosed by a physician orother licensed health care professional, even if itdoes not result in death, days away from work,restricted work or job transfer, medical treatmentbeyond first aid, or loss of consciousness.(b) Implementation.(1) How do I decide if a case meets one or more ofthe general recording criteria?A work-related injury or illness must be recordedif it results in one or more of the following:(i) Death. See Section 1904.7(b)(2).(ii) Days away from work. See Section1904.7(b)(3).(iii) Restricted work or transfer to another job. SeeSection 1904.7(b)(4).(iv) Medical treatment beyond first aid. SeeSection 1904.7(b)(5).(v) Loss of consciousness. See Section1904.7(b)(6).(vi) A significant injury or illness diagnosed by aphysician or other licensed health care professional.See Section 1904.7(b)(7).(2) How do I record a work-related injury or illnessthat results in the employee’s death?You must record an injury or illness that results indeath by entering a check mark on the OSHA 300 Login the space for cases resulting in death. You mustalso report any work-related fatality to OSHA withineight (8) hours, as required by Section 1904.39.(3) How do I record a work-related injury or illnessthat results in days away from work?When an injury or illness involves one or moredays away from work, you must record the injury orillness on the OSHA 300 Log with a check mark in thespace for cases involving days away and an entry ofthe number of calendar days away from work in thenumber of days column. If the employee is out for anextended period of time, you must enter an estimateof the days that the employee will be away, andupdate the day count when the actual number ofdays is known.(i) Do I count the day on which the injury occurredor the illness began?No, you begin counting days away on the dayafter the injury occurred or the illness began.(ii) How do I record an injury or illness when aphysician or other licensed health care professionalrecommends that the worker stay at home butthe employee comes to work anyway?You must record these injuries and illnesses onthe OSHA 300 Log using the check box for caseswith days away from work and enter the numberof calendar days away recommended by thephysician or other licensed health care professional.If a physician or other licensed health care professionalrecommends days away, you shouldencourage your employee to follow that recommendation.However, the days away must berecorded whether the injured or ill employee followsthe physician or licensed health care professional’srecommendation or not. If you receiverecommendations from two or more physicians orother licensed health care professionals, you maymake a decision as to which recommendation isthe most authoritative, and record the case basedupon that recommendation.(iii) How do I handle a case when a physician orother licensed health care professional recommendsthat the worker return to work but theemployee stays at home anyway?In this situation, you must end the count of daysaway from work on the date the physician or§1904.7OSHA RECORDKEEPINGHANDBOOK49

§1904.7other licensed health care professional recommendsthat the employee return to work.(iv) How do I count weekends, holidays, or otherdays the employee would not have worked anyway?You must count the number of calendar days theemployee was unable to work as a result of theinjury or illness, regardless of whether or not theemployee was scheduled to work on those day(s).Weekend days, holidays, vacation days or otherdays off are included in the total number of daysrecorded if the employee would not have beenable to work on those days because of a workrelatedinjury or illness.(v) How do I record a case in which a worker isinjured or becomes ill on a Friday and reports towork on a Monday, and was not scheduled towork on the weekend?You need to record this case only if you receiveinformation from a physician or other licensedhealth care professional indicating that theemployee should not have worked, or shouldhave performed only restricted work, during theweekend. If so, you must record the injury or illnessas a case with days away from work orrestricted work, and enter the day counts, asappropriate.(vi) How do I record a case in which a worker isinjured or becomes ill on the day before scheduledtime off such as a holiday, a planned vacation,or a temporary plant closing?You need to record a case of this type only if youreceive information from a physician or otherlicensed health care professional indicating thatthe employee should not have worked, or shouldhave performed only restricted work, during thescheduled time off. If so, you must record theinjury or illness as a case with days away fromwork or restricted work, and enter the day counts,as appropriate.(vii) Is there a limit to the number of days awayfrom work I must count?Yes, you may “cap” the total days away at 180 calendardays. You are not required to keep track ofthe number of calendar days away from work ifthe injury or illness resulted in more than 180 calendardays away from work and/or days of jobtransfer or restriction. In such a case, entering 180in the total days away column will be consideredadequate.(viii) May I stop counting days if an employeewho is away from work because of an injury or illnessretires or leaves my company?Yes, if the employee leaves your company forsome reason unrelated to the injury or illness,such as retirement, a plant closing, or to takeanother job, you may stop counting days awayfrom work or days of restriction/job transfer. If theemployee leaves your company because of theinjury or illness, you must estimate the total numberof days away or days of restriction/job transferand enter the day count on the 300 Log.(ix) If a case occurs in one year but results in daysaway during the next calendar year, do I recordthe case in both years?No, you only record the injury or illness once. Youmust enter the number of calendar days away forthe injury or illness on the OSHA 300 Log for theyear in which the injury or illness occurred. If theemployee is still away from work because of theinjury or illness when you prepare the annualsummary, estimate the total number of calendardays you expect the employee to be away fromwork, use this number to calculate the total for theannual summary, and then update the initial logentry later when the day count is known or reachesthe 180-day cap.(4) How do I record a work-related injury or illnessthat results in restricted work or job transfer?When an injury or illness involves restricted workor job transfer but does not involve death or daysaway from work, you must record the injury or illnesson the OSHA 300 Log by placing a check markin the space for job transfer or restriction and anentry of the number of restricted or transferred daysin the restricted workdays column.(i) How do I decide if the injury or illness resultedin restricted work?Restricted work occurs when, as the result of awork-related injury or illness:(A) You keep the employee from performingone or more of the routine functions of his or herjob, or from working the full workday that he orshe would otherwise have been scheduled towork; or(B) A physician or other licensed health careprofessional recommends that the employee notperform one or more of the routine functions ofhis or her job, or not work the full workday that heor she would otherwise have been scheduled towork.(ii) What is meant by “routine functions”?For recordkeeping purposes, an employee’s routinefunctions are those work activities theemployee regularly performs at least once perweek.50OSHA RECORDKEEPINGHANDBOOK

(iii) Do I have to record restricted work or jobtransfer if it applies only to the day on which theinjury occurred or the illness began?No, you do not have to record restricted work orjob transfers if you, or the physician or otherlicensed health care professional, impose therestriction or transfer only for the day on whichthe injury occurred or the illness began.(iv) If you or a physician or other licensed healthcare professional recommends a work restriction,is the injury or illness automatically recordable asa “restricted work” case?No, a recommended work restriction is recordableonly if it affects one or more of the employee’sroutine job functions. To determine whether this isthe case, you must evaluate the restriction in lightof the routine functions of the injured or ill employee’sjob. If the restriction from you or thephysician or other licensed health care professionalkeeps the employee from performing one ormore of his or her routine job functions, or fromworking the full workday the injured or ill employeewould otherwise have worked, the employee’swork has been restricted and you must record thecase.(v) How do I record a case where the workerworks only for a partial work shift because of awork-related injury or illness?A partial day of work is recorded as a day of jobtransfer or restriction for recordkeeping purposes,except for the day on which the injury occurred orthe illness began.(vi) If the injured or ill worker produces fewergoods or services than he or she would have producedprior to the injury or illness but otherwiseperforms all of the routine functions of his or herwork, is the case considered a restricted workcase?No, the case is considered restricted work only ifthe worker does not perform all of the routinefunctions of his or her job or does not work thefull shift that he or she would otherwise haveworked.(vii) How do I handle vague restrictions from aphysician or other licensed health care professional,such as that the employee engage only in“light duty” or “take it easy for a week”?If you are not clear about the physician or otherlicensed health care professional’s recommendation,you may ask that person whether theemployee can do all of his or her routine job functionsand work all of his or her normally assignedwork shift. If the answer to both of these ques-tions is “Yes,” then the case does not involve awork restriction and does not have to be recordedas such. If the answer to one or both of thesequestions is “No,” the case involves restrictedwork and must be recorded as a restricted workcase. If you are unable to obtain this additionalinformation from the physician or other licensedhealth care professional who recommended therestriction, record the injury or illness as a caseinvolving restricted work.(viii) What do I do if a physician or other licensedhealth care professional recommends a jobrestriction meeting OSHA’s definition, but theemployee does all of his or her routine job functionsanyway?You must record the injury or illness on the OSHA300 Log as a restricted work case. If a physician orother licensed health care professional recommendsa job restriction, you should ensure thatthe employee complies with that restriction. If youreceive recommendations from two or morephysicians or other licensed health care professionals,you may make a decision as to which recommendationis the most authoritative, andrecord the case based upon that recommendation.(ix) How do I decide if an injury or illness involveda transfer to another job?If you assign an injured or ill employee to a jobother than his or her regular job for part of theday, the case involves transfer to another job.Note: This does not include the day on which theinjury or illness occurred.(x) Are transfers to another job recorded in thesame way as restricted work cases?Yes, both job transfer and restricted work casesare recorded in the same box on the OSHA 300Log. For example, if you assign, or a physician orother licensed health care professional recommendsthat you assign, an injured or ill worker tohis or her routine job duties for part of the dayand to another job for the rest of the day, theinjury or illness involves a job transfer. You mustrecord an injury or illness that involves a jobtransfer by placing a check in the box for jobtransfer.(xi) How do I count days of job transfer orrestriction?You count days of job transfer or restriction in thesame way you count days away from work, usingSection 1904.7(b)(3)(i) to (viii), above. The onlydifference is that, if you permanently assign theinjured or ill employee to a job that has beenmodified or permanently changed in a manner§1904.7OSHA RECORDKEEPINGHANDBOOK51

§1904.7that eliminates the routine functions the employeewas restricted from performing, you may stop theday count when the modification or change ismade permanent. You must count at least one dayof restricted work or job transfer for such cases.(5) How do I record an injury or illness thatinvolves medical treatment beyond first aid?If a work-related injury or illness results in medicaltreatment beyond first aid, you must record it on theOSHA 300 Log. If the injury or illness did not involvedeath, one or more days away from work, one ormore days of restricted work, or one or more days ofjob transfer, you enter a check mark in the box forcases where the employee received medical treatmentbut remained at work and was not transferredor restricted.(i) What is the definition of medical treatment?“Medical treatment” means the management andcare of a patient to combat disease or disorder.For the purposes of Part 1904, medical treatmentdoes not include:(A) Visits to a physician or other licensed healthcare professional solely for observation or counseling;(B) The conduct of diagnostic procedures, suchas x-rays and blood tests, including the administrationof prescription medications used solely fordiagnostic purposes (e.g., eye drops to dilatepupils); or(C) “First aid” as defined in paragraph (b)(5)(ii)of this section.(ii) What is “first aid”?For the purposes of Part 1904, “first aid” meansthe following:(A) Using a non-prescription medication at nonprescriptionstrength (for medications available inboth prescription and non-prescription form, arecommendation by a physician or other licensedhealth care professional to use a non-prescriptionmedication at prescription strength is consideredmedical treatment for recordkeeping purposes);(B) Administering tetanus immunizations (otherimmunizations, such as Hepatitis B vaccine orrabies vaccine, are considered medical treatment);(C) Cleaning, flushing or soaking wounds on thesurface of the skin;(D) Using wound coverings such as bandages,Band-Aids TM , gauze pads, etc.; or using butterflybandages or Steri-Strips TM (other wound closingdevices such as sutures, staples, etc., are consideredmedical treatment);(E) Using hot or cold therapy;(F) Using any non-rigid means of support, suchas elastic bandages, wraps, non-rigid back belts,etc. (devices with rigid stays or other systemsdesigned to immobilize parts of the body are consideredmedical treatment for recordkeeping purposes);(G) Using temporary immobilization deviceswhile transporting an accident victim (e.g., splints,slings, neck collars, back boards, etc.).(H) Drilling of a fingernail or toenail to relievepressure, or draining fluid from a blister;(I) Using eye patches;(J) Removing foreign bodies from the eye usingonly irrigation or a cotton swab;(K) Removing splinters or foreign material fromareas other than the eye by irrigation, tweezers,cotton swabs or other simple means;(L) Using finger guards;(M) Using massages (physical therapy or chiropractictreatment are considered medical treatmentfor recordkeeping purposes); or(N) Drinking fluids for relief of heat stress.(iii) Are any other procedures included in first aid?No, this is a complete list of all treatments consideredfirst aid for Part 1904 purposes.(iv) Does the professional status of the personproviding the treatment have any effect on what isconsidered first aid or medical treatment?No, OSHA considers the treatments listed inSection 1904.7(b)(5)(ii) of this Part to be first aidregardless of the professional status of the personproviding the treatment. Even when these treatmentsare provided by a physician or otherlicensed health care professional, they are consideredfirst aid for the purposes of Part 1904.Similarly, OSHA considers treatment beyond firstaid to be medical treatment even when it is providedby someone other than a physician or otherlicensed health care professional.(v) What if a physician or other licensed healthcare professional recommends medical treatmentbut the employee does not follow the recommendation?If a physician or other licensed health care professionalrecommends medical treatment, youshould encourage the injured or ill employee tofollow that recommendation. However, you mustrecord the case even if the injured or ill employeedoes not follow the physician or other licensedhealth care professional’s recommendation.(6) Is every work-related injury or illness caseinvolving a loss of consciousness recordable?Yes, you must record a work-related injury or illnessif the worker becomes unconscious, regardless52OSHA RECORDKEEPINGHANDBOOK

of the length of time the employee remains unconscious.(7) What is a “significant” diagnosed injury or illnessthat is recordable under the general criteriaeven if it does not result in death, days away fromwork, restricted work or job transfer, medical treatmentbeyond first aid, or loss of consciousness?Work-related cases involving cancer, chronic irreversibledisease, a fractured or cracked bone, or apunctured eardrum must always be recorded underthe general criteria at the time of diagnosis by aphysician or other licensed health care professional.Note to Section 1904.7: OSHA believes that mostsignificant injuries and illnesses will result in one ofthe criteria listed in Section 1904.7(a): death, daysaway from work, restricted work or job transfer, medicaltreatment beyond first aid, or loss of consciousness.However, there are some significant injuries,such as a punctured eardrum or a fractured toe orrib, for which neither medical treatment nor workrestrictions may be recommended. In addition, thereare some significant progressive diseases, such asbyssinosis, silicosis, and some types of cancer, forwhich medical treatment or work restrictions may notbe recommended at the time of diagnosis but arelikely to be recommended as the disease progresses.OSHA believes that cancer, chronic irreversible diseases,fractured or cracked bones, and puncturedeardrums are generally considered significantinjuries and illnesses, and must be recorded at theinitial diagnosis even if medical treatment or workrestrictions are not recommended, or are postponed,in a particular case.PREAMBLE DISCUSSION: Section 1904.7(66 FR 5968-5998, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.7 General recording criteria.Section 1904.7 contains the general recording criteriafor recording work-related injuries and illnesses. Thissection describes the recording of cases that meetone or more of the following six criteria: death, daysaway from work, restricted work or transfer to anotherjob, medical treatment beyond first aid, loss ofconsciousness, or diagnosis as a significant injury orillness by a physician or other licensed health careprofessional.Paragraph 1904.7(a)Paragraph 1904.7(a) describes the basic requirementfor recording an injury or illness in the OSHA recordkeepingsystem. It states that employers must recordany work-related injury or illness that meets one ormore of the final rule’s general recording criteria.There are six such criteria: death, days away fromwork, days on restricted work or on job transfer,medical treatment beyond first aid, loss of consciousness,or diagnosis by a physician or other licensedheath care professional as a significant injury or illness….Paragraph 1904.7(b)Paragraph 1904.7(b) tells employers how to recordcases meeting each of the six general recording criteriaand states how each case is to be entered on theOSHA 300 Log. Paragraph 1904.7(b)(1) provides asimple decision table listing the six general recordingcriteria and the paragraph number of each in the finalrule. It is included to aid employers and recordkeepersin recording these cases.1904.7(b)(2) DeathParagraph 1904.7(b)(2) requires the employer torecord an injury or illness that results in death byentering a check mark on the OSHA 300 Log in thespace for fatal cases. This paragraph also directsemployers to report work-related fatalities to OSHAwithin 8 hours and cross references the fatality andcatastrophe reporting requirements in Section1904.39 of the final rule, Reporting fatalities and multiplehospitalizations to OSHA….Paragraph 1904.7(b)(3) Days Away From WorkParagraph 1904.7(b)(3) contains the requirements forrecording work-related injuries and illnesses thatresult in days away from work and for counting thetotal number of days away associated with a givencase. Paragraph 1904.7(b)(3) requires the employer torecord an injury or illness that involves one or moredays away from work by placing a check mark on theOSHA 300 Log in the space reserved for day(s) awaycases and entering the number of calendar daysaway from work in the column reserved for that pur-§1904.7OSHA RECORDKEEPINGHANDBOOK53

§1904.7pose. This paragraph also states that, if the employeeis away from work for an extended time, the employermust update the day count when the actual numberof days away becomes known….Paragraphs 1904.7(b)(3)(i) through (vi) implementthe basic requirements. Paragraph 1904.7(b)(3)(i)states that the employer is not to count the day ofthe injury or illness as a day away, but is to begincounting days away on the following day. Thus, eventhough an injury or illness may result in some loss oftime on the day of the injurious event or exposurebecause, for example, the employee seeks treatmentor is sent home, the case is not considered a daysaway-from-workcase unless the employee does notwork on at least one subsequent day because of theinjury or illness. The employer is to begin countingdays away on the day following the injury or onset ofillness….Paragraphs 1904.7(b)(3)(ii) and (iii) direct employershow to record days-away cases when a physicianor other licensed health care professional (HCP) recommendsthat the injured or ill worker stay at homeor that he or she return to work but the employeechooses not to do so. As these paragraphs makeclear, OSHA requires employers to follow the physician’sor HCP’s recommendation when recording thecase. Further, whether the employee works or not isin the control of the employer, not the employee.That is, if an HCP recommends that the employeeremain away from work for one or more days, theemployer is required to record the injury or illness asa case involving days away from work and to keeptrack of the days; the employee’s wishes in this caseare not relevant, since it is the employer who controlsthe conditions of work. Similarly, if the HCP tellsthe employee that he or she can return to work, theemployer is required by the rule to stop counting thedays away from work, even if the employee choosesnot to return to work. OSHA is aware that there maybe situations where the employer obtains an opinionfrom a physician or other health care professionaland a subsequent HCP’s opinion differs from the first.(The subsequent opinion could be that of an HCPretained by the employer or the employee.) In thiscase, the employer is the ultimate recordkeepingdecision-maker and must resolve the differences inopinion; he or she may turn to a third HCP for thispurpose, or may make the recordability decision himselfor herself.Paragraph 1904.7(b)(3)(iv) specifies how theemployer is to account for weekends, holidays, andother days during which the employee was unable towork because of a work-related injury or illness duringa period in which the employee was not scheduledto work. The rule requires the employer to countthe number of calendar days the employee wasunable to work because of the work-related injury orillness, regardless of whether or not the employeewould have been scheduled to work on those calendardays….Paragraph 1904.7(b)(3)(v) tells the employer howto count days away for a case where the employee isinjured or becomes ill on the last day of work beforesome scheduled time off, such as on the Fridaybefore the weekend or the day before a scheduledvacation, and returns to work on the next day that heor she was scheduled to work. In this situation, theemployer must decide if the worker would have beenable to work on the days when he or she was not atwork. In other words, the employer is not required tocount as days away any of the days on which theemployee would have been able to work but did notbecause the facility was closed, the employee wasnot scheduled to work, or for other reasons unrelatedto the injury or illness. However, if the employerdetermines that the employee’s injury or illnesswould have kept the employee from being able towork for part or all of time the employee was away,those days must be counted toward the days awaytotal.Paragraph 1904.7(b)(3)(vi) allows the employer tostop counting the days away from work when theinjury or illness has resulted in 180 calendar daysaway from work. When the injury or illness results inan absence of more than 180 days, the employermay enter 180 (or 180+) on the Log….Paragraph 1904.7(b)(3)(vii) specifies that employerswhose employees are away from work becauseof a work-related injury or illness and who thendecide to leave the company’s employ or to retiremust determine whether the employee is leaving orretiring because of the injury or illness and recordthe case accordingly. If the employee’s decision toleave or retire is a result of the injury or illness, thisparagraph requires the employer to estimate andrecord the number of calendar days away or onrestricted work/job transfer the worker would haveexperienced if he or she had remained on theemployer’s payroll. This provision also states that, ifthe employee’s decision was unrelated to the injuryor illness, the employer is not required to continue tocount and record days away or on restricted work/jobtransfer.Paragraph 1904.7(b)(3)(viii) directs employers howto handle a case that carries over from one year tothe next. Some cases occur in one calendar year and54OSHA RECORDKEEPINGHANDBOOK

then result in days away from work in the next year.For example, a worker may be injured on December20th and be away from work until January 10th. Thefinal rule directs the employer only to record thistype of case once, in the year that it occurred. If theemployee is still away from work when the annualsummary is prepared (before February 1), theemployer must either count the number of days theemployee was away or estimate the total days awaythat are expected to occur, use this estimate to calculatethe total days away during the year for the annualsummary, and then update the Log entry laterwhen the actual number of days is known or the casereaches the 180-day cap allowed in Section1904.7(b)(3)(v).......OSHA has decided to require employers tocount calendar days, both for the totals for daysaway from work and the count of restricted workdays….Changing to a calendar day counting system willalso make it easier to count days away or restrictedfor part-time workers, because the difficulties ofcounting scheduled time off for part-time workerswill be eliminated. This will, in turn, mean that thedata for part-time workers will be comparable to thatfor full-time workers, i.e., days away will be comparablefor both kinds of workers, because scheduledtime will not bias the counting method. Calendar daycounts will also be a better measure of severity,because they will be based on the length of disabilityinstead of being dependent on the individualemployee’s work schedule. This policy will thus createmore complete and consistent data and help torealize one of the major goals of this rulemaking: toimprove the quality of the injury and illness data.OSHA recognizes that moving to calendar daycounts will have two effects on the data. First, it willbe difficult to compare injury and illness data gatheredunder the former rule with data collected underthe new rule. This is true for day counts as well asthe overall number and rate of occupational injuriesand illnesses. Second, it will be more difficult foremployers to estimate the economic impacts of losttime. Calendar day counts will have to be adjusted toaccommodate for days away from work that theemployee would not have worked even if he or shewas not injured or ill. This does not mean that calendarday counts are not appropriate in these situations,but it does mean that their use is more complicatedin such cases. Those employers who wish tocontinue to collect additional data, including scheduledworkdays lost, may continue to do so. However,employers must count and record calendar days forthe OSHA injury and illness Log.Thus, on balance, OSHA believes that any problemsintroduced by moving to a calendar-day systemwill be more than offset by the improvements in thedata from one case to the next and from oneemployer to another, and by the resulting improvementsin year-to-year analysis made possible by thischange in the future, i.e., by the improved consistencyand quality of the data.The more difficult problem raised by the shift tocalendar days occurs in the case of the injury or illnessthat results on the day just before a weekend orsome other prescheduled time off. Where the workercontinues to be off work for the entire time becauseof the injury or illness, these days are clearly appropriatelyincluded in the day count. As previously discussed,if a physician or other licensed health careprofessional issues a medical release at some pointwhen the employee is off work, the employer maystop counting days at that point in the prescheduledabsence. Similarly, if the HCP tells the injured or illworker not to work over the scheduled time off, theinjury was severe enough to require days away andthese must all be counted. In the event that the workerwas injured or became ill on the last day beforethe weekend or other scheduled time off and returnson the scheduled return date, the employer mustmake a reasonable effort to determine whether ornot the employee would have been able to work onany or all of those days, and must count the daysand enter them on the Log based on that determination.In this situation, the employer need not countdays on which the employee would have been ableto work, but did not, because the facility was closed,or the employee was not scheduled to work, or forother reasons unrelated to the injury or illness….Capping the Count of Lost Workdays…After a review of the evidence submitted to therecord, OSHA has decided to include in the final rulea provision that allows the employer to stop countingdays away from work or restricted workdays whenthe case has reached 180 days….Selection of the Day Count Cap…After careful consideration, OSHA has decided tocap the day counts at 180 days and to express thecount as days rather than months….OSHA has decided to cap the counts at 180 daysto eliminate any effect such capping might have onthe median days away from work data reported byBLS….§1904.7OSHA RECORDKEEPINGHANDBOOK55

§1904.7Counting Lost Workdays When Employees Are NoLonger Employed by the Company…The final rule, at paragraph 1904.7(b)(3)(vii), permitsemployers to stop counting days away if aninjured or ill employee leaves employment with thecompany for a reason unrelated to the injury or illness.Examples of such situations include retirement,closing of the business, or the employee’s decision tomove to a new job.Paragraph 1904.7(b)(3)(vii) also requires employerswhose employees have left the company becauseof the injury or illness to make an estimate of thetotal days that the injured or ill employee would havetaken off work to recuperate. The provisions in paragraph1904.7(b)(3)(vii) also apply to the counting ofrestricted or transferred days . . . .OSHA’s reasoning is that day counts continue tobe relevant indicators of severity in cases where theemployee was forced to leave work because of theinjury or illness.Handling Cases That Cross Over From One Year tothe Next…If the case extends beyond the time when theemployer summarizes the records following the endof the year as required by Section 1904.32, theemployer is required by paragraph 1904.7(b)(3)(viii)to update the records when the final day count isknown. In other words, the case is entered only inthe year in which it occurs, but the original Log entrymust subsequently be updated if the day countextends into the following year…....The final rule also requires the employer tosummarize and post the records by February 1 of theyear following the reference year…....[T]he final rule requires the employer to updatethe Log when the final day count is known (orexceeds 180 days), but to record the injury or illnesscase only once….Paragraph 1904.7(b)(4) Restricted Work or Transfer toAnother JobAnother class of work-related injuries and illnessesthat Section 8(c) of the Act identifies as non-minorand thus recordable includes any case that results inrestriction of work or motion...or transfer to anotherjob. Congress clearly identified restricted work activityand job transfer as indicators of injury and illnessseverity….Final Rule’s Restricted Work and Job TransferProvisions, and OSHA’s Reasons for Adopting ThemParagraph 1904.7(b)(4) contains the restricted workand job transfer provisions of the final rule….The final rule’s requirements in paragraph1904.10(b)(4) of the final rule state:(4) How do I record a work-related injury or illnessthat involves restricted work or job transfer?When an injury or illness involves restricted workor job transfer but does not involve death or daysaway from work, you must record the injury or illnesson the OSHA 300 Log by placing a check markin the space for job transfer or restricted work andentering the number of restricted or transferred daysin the restricted work column.(i) How do I decide if the injury or illness resultedin restricted work?Restricted work occurs when, as the result of awork-related injury or illness:(A) You keep the employee from performing one ormore of the routine functions of his or her job, orfrom working the full workday that he or shewould otherwise have been scheduled to work; or(B) A physician or other licensed health care professionalrecommends that the employee not performone or more of the routine functions of his orher job, or not work the full workday that he or shewould otherwise have been scheduled to work.(ii) What is meant by “routine functions”?For recordkeeping purposes, an employee’s routinefunctions are those work activities the employeeregularly performs at least once per week.(iii) Do I have to record restricted work or jobtransfer if it applies only to the day on which theinjury occurred or the illness began?No. You do not have to record restricted work orjob transfers if you, or the physician or otherlicensed health care professional, impose the restrictionor transfer only for the day on which the injuryoccurred or the illness began.(iv) If you or a physician or other licensed healthcare professional recommends a work restriction, isthe injury or illness automatically recordable as a“restricted work” case?No. A recommended work restriction is recordableonly if it affects one or more of the employee’s routinejob functions. To determine whether this is thecase, you must evaluate the restriction in light of theroutine functions of the injured or ill employee’s job.If the restriction from you or the physician or otherlicensed health care professional keeps the employeefrom performing one or more of his or her routinejob functions, or from working the full workday theinjured or ill employee would otherwise haveworked, the employee’s work has been restricted andyou must record the case.(v) How do I record a case where the worker worksonly for a partial work shift because of a work-relatedinjury or illness?56OSHA RECORDKEEPINGHANDBOOK

A partial day of work is recorded as a day of jobtransfer or restriction for recordkeeping purposes,except for the day on which the injury occurred orthe illness began.(vi)If the injured or ill worker produces fewergoods or services than he or she would have producedprior to the injury or illness but otherwise performsall of the activities of his or her work, is thecase considered a restricted work case?No. The case is considered restricted work only ifthe worker does not perform all of the routine functionsof his or her job or does not work the full shiftthat he or she would otherwise have worked.(vii) How do I handle vague restrictions from aphysician or other licensed health care professional,such as that the employee engage only in “lightduty” or “take it easy for a week”?If you are not clear about a physician or otherlicensed health care professional’s recommendation,you may ask that person whether theemployee can perform all of his or her routine jobfunctions and work all of his or her normallyassigned work shift. If the answer to both of thesequestions is “Yes,” then the case does not involvea work restriction and does not have to be recordedas such. If the answer to one or both of thesequestions is “No,” the case involves restricted workand must be recorded as a restricted work case. Ifyou are unable to obtain this additional informationfrom the physician or other licensed healthcare professional who recommended the restriction,record the injury or illness as a case involvingjob transfer or restricted work.(viii) What do I do if a physician or otherlicensed health care professional recommends ajob restriction meeting OSHA’s definition but theemployee does all of his or her routine job functionsanyway?You must record the injury or illness on theOSHA 300 Log as a restricted work case. If aphysician or other licensed health care professionalrecommends a job restriction, you shouldensure that the employee complies with thatrestriction. If you receive recommendationsfrom two or more physicians or other licensedhealth care providers, you may make a decisionas to which recommendation is the mostauthoritative, and record the case based uponthat recommendation.…The final rule’s concept of restricted work isbased both on the type of work activities the injuredor ill worker is able to perform and the length of timethe employee is able to perform these activities. Theterm “routine functions of the job” in paragraphs1904.7(b)(4)(i) and (b)(4)(ii) clarifies that OSHA considersan employee who is unable, because of a workrelatedinjury or illness, to perform the job activitieshe or she usually performs to be restricted in thework he or she may perform…....OSHA agrees that it makes little sense to consideran employee who is prevented by an injury or illnessfrom performing a particular job function he orshe never or rarely performed to be restricted….For example, OSHA finds that, for the purposes ofrecordkeeping, an activity that is performed onlyonce per month is not performed “regularly.” …...In the final rule, OSHA has decided that definingrestricted work as work that an employee would regularlyhave performed at least once per week isappropriate, i.e., OSHA believes that the range ofactivities captured by this interval of time will generallyreflect the range of an employee’s usual workactivities. Activities performed less frequently thanonce per week reflect more uncommon work activitiesthat are not considered routine duties for thepurposes of this rule. However, the final rule doesnot rely on the duties the employee actually performedduring the week when he or she was injuredor became ill. Thus, even if an employee did not performthe activity within the last week, but usuallyperforms the activity once a week, the activity will beincluded….The final rule’s restricted work provisions alsoclarify that work restriction must be imposed by theemployer or be recommended by a health care professionalbefore the case is recordable. Only theemployer has the ultimate authority to restrict anemployee’s work, so the definition is clear that,although a health care professional may recommendthe restriction, the employer makes the final determinationof whether or not the health care professional’srecommended restriction involves the employee’sroutine functions. Restricted work assignments mayinvolve several steps: an HCP’s recommendation, oremployer’s determination to restrict the employee’swork, the employer’s analysis of jobs to determinewhether a suitable job is available, and assignmentof the employee to that job. All such restricted workcases are recordable, even if the health care professionalallows some discretion in defining the type orduration of the restriction…....[T]he Congress has directed that the recordkeepingsystem capture data on non-minor work-relatedinjuries and illnesses and specifically on restrictedwork cases, both so that the national statistics onsuch injuries and illnesses will be complete and sothat links between the causes and contributing fac-§1904.7OSHA RECORDKEEPINGHANDBOOK57

§1904.7tors to such injuries and illnesses will be identified(29 U.S.C. 651(b)). Days away and restricted work/jobtransfer cases together constitute two of the mostimportant kind s of job-related injuries and illnesses,and it would be inappropriate not to record theseserious cases….Under the final rule, employers are not requiredto record a case as a restricted work case if therestriction is imposed on the employee only for theday of the injury or onset of illness…....OSHA has made this change to bring the recordingof restricted work cases into line with that fordays away cases: under the final rule, employers arenot required to record as days away or restrictedwork cases those injuries and illnesses that result intime away or time on restriction or job transfer lastingonly for the day of injury of illness onset…....Under the final rule (see section 1904.9), mandatedremovals made in accordance with an OSHAhealth standard must be recorded either as daysaway from work or as days of restricted work activity,depending on the specific action an employer takes.Since these actions are mandated, no disincentive torecord is created by this recordkeeping rule…....Transfers or restrictions taken before theemployee has experienced an injury or illness do notmeet the first recording requirement of the recordkeepingrule, i.e., that a work-related injury or illnessmust have occurred for recording to be considered atall. A truly preventive medical treatment, for example,would be a tetanus vaccination administeredroutinely to an outdoor worker. However, transfers orrestrictions whose purpose is to allow an employeeto recover from an injury or illness as well as to keepthe injury or illness from becoming worse are recordablebecause they involve restriction or work transfercaused by the injury or illness. All restricted workcases and job transfer cases that result from aninjury or illness that is work-related are recordable onthe employer’s Log.As the regulatory text for paragraph (b)(4) makesclear, the final rule’s requirements for the recordingof restricted work cases are similar in many ways tothose pertaining to restricted work under the formerrule. First, like the former rule, the final rule onlyrequires employers to record as restricted work casesthose cases in which restrictions are imposed or recommendedas a result of a work-related injury or illness.A work restriction that is made for another reason,such as to meet reduced production demands, isnot a recordable restricted work case. For example,an employer might “restrict” employees from enter-ing the area in which a toxic chemical spill hasoccurred or make an accommodation for an employeewho is disabled as a result of a non-work-relatedinjury or illness. These cases would not be recordableas restricted work cases because they are not associatedwith a work-related injury or illness. However, ifan employee has a work-related injury or illness, andthat employee’s work is restricted by the employer toprevent exacerbation of, or to allow recuperationfrom, that injury or illness, the case is recordable as arestricted work case because the restriction wasnecessitated by the work-related injury or illness. Insome cases, there may be more than one reason forimposing or recommending a work restriction, e.g.,to prevent an injury or illness from becoming worseor to prevent entry into a contaminated area. In suchcases, if the employee’s work-related illness or injuryplayed any role in the restriction, OSHA considersthe case to be a restricted work case.Second, for the definition of restricted work toapply, the work restriction must be decided on by theemployer, based on his or her best judgment or onthe recommendation of a physician or other licensedhealth care professional. If a work restriction is notfollowed or implemented by the employee, the injuryor illness must nevertheless be recorded on the Logas a restricted case….Third, like the former rule, the final rule’s definitionof restricted work relies on two components:whether the employee is able to perform the dutiesof his or her pre-injury job, and whether the employeeis able to perform those duties for the same periodof time as before.The principal differences between the final andformer rules’ concept of restricted work cases arethese: (1) the final rule permits employers to cap thetotal number of restricted work days for a particularcase at 180 days, while the former rule required allrestricted days for a given case to be recorded; (2)the final rule does not require employers to count therestriction of an employee’s duties on the day theinjury occurred or the illness began as restrictedwork, providing that the day the incident occurred isthe only day on which work is restricted; and (3) thefinal rule defines work as restricted if the injured or illemployee is restricted from performing any job activitythe employee would have regularly performed atleast once per week before the injury or illness, whilethe former rule counted work as restricted if theemployee was restricted in performing any activityhe or she would have performed at least once peryear.58OSHA RECORDKEEPINGHANDBOOK

In all other respects, the final rule continues totreat restricted work and job transfer cases in thesame manner as they were treated under the formerrule, including the counting of restricted days.Paragraph 1904.7(b)(4)(xi) requires the employer tocount restricted days using the same rules as thosefor counting days away from work, using Section1904.7(b)(3)(i) to (viii), with one exception. Like theformer rule, the final rule allows the employer to stopcounting restricted days if the employee’s job hasbeen permanently modified in a manner that eliminatesthe routine functions the employee has beenrestricted from performing. Examples of permanentmodifications would include reassigning an employeewith a respiratory allergy to a job where suchallergens are not present, or adding a mechanicalassist to a job that formerly required manual lifting.To make it clear that employers may stop countingrestricted days when a job has been permanentlychanged, but not to eliminate the count of restrictedwork altogether, the rule makes it clear that at leastone restricted workday must be counted, even if therestriction is imposed immediately….Paragraph 1904.7(b)(5) Medical Treatment BeyondFirst Aid…As a result of this final rule, OSHA will now applythe same recordability criteria to both injuries and illnesses(see the discussion of this issue in the LegalAuthority section of this preamble). The Agencybelieves that doing so will simplify the decision-makingprocess that employers carry out when determiningwhich work-related injuries and illnesses torecord and will also result in more complete data onoccupational illness, because employers will knowthat they must record these cases when they result inmedical treatment beyond first aid, regardless ofwhether or not a physician or other licensed healthcare professional has made a diagnosis….…Under the final rule, employers will be able torely on a single list of 14 first aid treatments. Thesetreatments will be considered first aid whether theyare provided by a lay person or a licensed healthcare professional. However, the final rule includes thefollowing definition of medical treatment; “managementand care of a patient for the purpose of combatingdisease or disorder;” this definition excludesobservation and counseling, diagnostic procedures,and the listed first aid items…....The following discussion describes the definitionsof first aid and medical treatment in the finalrule and explains the Agency’s reasons for includingeach item on the first aid list.Final RuleThe final rule, at Section 1904.7(b)(5)(i), defines medicaltreatment as the management and care of apatient for the purpose of combating disease or disorder.For the purposes of Part 1904, medical treatmentdoes not include:(A) Visits to a physician or other licensed health careprofessional solely for observation or counseling;(B) The conduct of diagnostic procedures, such as x-rays and blood tests, including the administration ofprescription medications used solely for diagnosticpurposes (e.g., eye drops to dilate pupils); or(C) “First aid” as defined in paragraph (b)(5)(ii) of thissection.The final rule, at paragraph (b)(5)(ii), defines firstaid as follows:(A) Using a nonprescription medication at nonprescriptionstrength (for medications available in bothprescription and non-prescription form, a recommendationby a physician or other licensed health careprofessional to use a non-prescription medication atprescription strength is considered medical treatmentfor recordkeeping purposes).(B) Administering tetanus immunizations (otherimmunizations, such as hepatitis B vaccine or rabiesvaccine, are considered medical treatment).(C) Cleaning, flushing or soaking wounds on the surfaceof the skin;(D) Using wound coverings, such as bandages, Band-Aids®, gauze pads, etc.; or using butterfly bandagesor Steri-Strips® (other wound closing devices, suchas sutures, staples, etc. are considered medical treatment);(E) Using hot or cold therapy;(F) Using any non-rigid means of support, such aselastic bandages, wraps, non-rigid back belts, etc.(devices with rigid stays or other systems designedto immobilize parts of the body are considered medicaltreatment for recordkeeping purposes);(G) Using temporary immobilization devices whiletransporting an accident victim (e.g., splints, slings,neck collars, back boards, etc.)(H) Drilling of a fingernail or toenail to relieve pressure,or draining fluid from a blister;(I)Using eye patches;(J) Removing foreign bodies from the eye using onlyirrigation or a cotton swab;(K) Removing splinters or foreign material fromareas other than the eye by irrigation, tweezers, cottonswabs, or other simple means;(L) Using finger guards;(M) Using massages (physical therapy or chiropractictreatment are considered medical treatment forrecordkeeping purposes);(N) Drinking fluids for relief of heat stress.§1904.7OSHA RECORDKEEPINGHANDBOOK59

§1904.7This list of first aid treatments is comprehensive,i.e., any treatment not included on this list is not consideredfirst aid for OSHA recordkeeping purposes.OSHA considers the listed treatments to be first aidregardless of the professional qualifications of theperson providing the treatment; even when thesetreatments are provided by a physician, nurse, orother health care professional, they are consideredfirst aid for recordkeeping purposes…....The medical treatment definition in the final ruleis taken from Dorland’s Illustrated Medical Dictionary,and is thus consistent with usage in the medicalcommunity.The three listed exclusions from the definition--visitsto a health care professional solely for observationor counseling; diagnostic procedures, including prescribingor administering of prescription medicationsused solely for diagnostic purposes; and proceduresdefined in the final rule as first aid--clarify the applicabilityof the definition and are designed to helpemployers in their determinations of recordability…....Employers will thus be clear that any conditionthat is treated, or that should have been treated, witha treatment not on the first aid list is a recordableinjury or illness for recordkeeping purposes….In making its decisions about the items to beincluded on the list of first aid treatments, OSHArelied on its experience with the former rule, theadvice of the Agency’s occupational medicine andoccupational nursing staff, and a thorough review ofthe record comments. In general, first aid treatmentcan be distinguished from medical treatment as follows:• First aid is usually administered after the injury orillness occurs and at the location (e.g., workplace)where the injury or illness occurred.• First aid generally consists of one-time or shorttermtreatment.• First aid treatments are usually simple and requirelittle or no technology.• First aid can be administered by people with littletraining (beyond first aid training) and even by theinjured or ill person.• First aid is usually administered to keep the conditionfrom worsening, while the injured or ill person isawaiting medical treatment.The final rule’s list of treatments considered firstaid is based on the record of the rulemaking, OSHA’sexperience in implementing the recordkeeping rulesince 1986, a review of the BLS RecordkeepingGuidelines, letters of interpretation, and the professionaljudgment of the Agency’s occupational physiciansand nurses….OSHA agrees that counseling should not be consideredmedical treatment and has expressly excludedit from the definition of medical treatment. Counselingis often provided to large groups of workerswho have been exposed to potentially traumaticevents. Counseling may be provided on a short-termbasis by either a licensed health care professional oran unlicensed person with limited training. OSHAbelieves that capturing cases where counseling wasthe only treatment provided do not rise to the level ofrecording; other counseling cases, where prescriptionmedications, days away from work, or restrictedwork activity is involved, would be captured underthose criteria…....OSHA believes that visits to a health care professionalfor observation, testing, diagnosis, or toevaluate diagnostic decisions should be excludedfrom the definition of medical treatment in the finalrule. Visits to a hospital, clinic, emergency room,physician’s office or other facility for the purpose ofseeking the advice of a health care professional donot themselves constitute treatment. OSHA believesthat visits to a hospital for observation or counselingare not, of and by themselves, medical treatment.Accordingly, the final rule excludes these activitiesfrom the definition of medical treatment….OSHA disagrees...that the exclusion for diagnosticprocedures is overly vague. It is the experience of theAgency that employers generally understand the differencebetween procedures used to combat aninjury or illness and those used to diagnose or assessan injury or illness. In the event that the employerdoes not have this knowledge, he or she may contactthe health care professional to obtain help with thisdecision. If the employerdoes not have this knowledge,and elects not to contact the health care professional,OSHA would expect the employer to referto the first aid list and, if the procedure is not on thelist, to presume that the procedure is medical treatmentand record the case….OSHA agrees with those commenters who recommendedthe exclusion of diagnostic procedures fromthe definition of medical treatment. Diagnostic proceduresare used to determine whether or not an injuryor illness exists, and do not encompass therapeutictreatment of the patient. OSHA has included suchprocedures on the first aid list in the final rule withtwo examples of diagnostic procedures to helpreduce confusion about the types of procedures thatare excluded….In the final rule, OSHA has not included prescriptionmedications, whether given once or over alonger period of time, in the list of first aid treat-60OSHA RECORDKEEPINGHANDBOOK

ments. The Agency believes that the use of prescriptionmedications is not first aid because prescriptionmedications are powerful substances that can onlybe prescribed by a licensed health care professional,and for the majority of medications in the majority ofstates, by a licensed physician. The availability ofthese substances is carefully controlled and limitedbecause they must be prescribed and administeredby a highly trained and knowledgeable professional,can have detrimental side effects, and should not beself-administered.Some commenters asked whether a case where aprescription was written by a physician and given tothe injured or ill employee but was not actually filledor taken would be recordable. In some instances theemployee, for religious or other reasons, refuses tofill the prescription and take the medicine. In othercases, the prescriptions are issued on a “take-asneeded”basis. In these cases, the health care professionalgives the patient a prescription, often for painmedication, and tells the patient to fill and take theprescription if he or she needs pain relief. OSHA’slong-standing policy has been that if a prescription ofthis type has been issued, medical treatment hasbeen provided and the case must therefore berecorded….OSHA has decided to retain its long-standing policyof requiring the recording of cases in which ahealth care professional issues a prescription,whether that prescription is filled or taken or not. Thepatient’s acceptance or refusal of the treatment doesnot alter the fact that, in the health care professional’sjudgment, the case warrants medical treatment….The final rule does not consider the prescribing ofnon-prescription medications, such as aspirin or overthe-counterskin creams, as medical treatment.However, if the drug is one that is available both inprescription and nonprescription strengths, such asibuprofen, and is used or recommended for use by aphysician or other licensed health care professionalat prescription strength, the medical treatment criterionis met and the case must be recorded. There is noreason for one case to be recorded and another notto be recorded simply because one physician issueda prescription and another told the employee to usethe same medication at prescription strength but toobtain it over the counter. Both cases received equaltreatment and should be recorded equally…....The final rule simply lists non-prescription medications,and expects non-prescription medications tobe included regardless of form. Therefore, non-prescriptionmedicines at non-prescription strength,whether in ointment, cream, pill, liquid, spray, or anyother form are considered first aid. OSHA has alsoremoved antiseptics from the description of non-prescriptionmedications. Following the same logic usedfor ointments, there is no need to list the variety ofpossible uses of non-prescription medications. Nonprescriptionmedicines are first aid regardless of theway in which they are used…....[T]he Agency has decided to remove the use ofoxygen from the first aid list and to consider any useof oxygen medical treatment. Oxygen administrationis a treatment that can only be provided by trainedmedical personnel, uses relatively complex technology,and is used to treat serious injuries and illnesses.The use of any artificial respiration technology, suchas Intermittent Positive Pressure Breathing (IPPB),would also clearly be considered medical treatmentunder the final rule….In the final rule, tetanus immunizations are includedas item B on the first aid list. These immunizationsare often administered to a worker routinely to maintainthe required level of immunity to the tetanusbacillus. These immunizations are thus based not onthe severity of the injury but on the length of timesince the worker has last been immunized.The issue of whether or not immunizations andinoculations are first aid or medical treatment is irrelevantfor recordkeeping purposes unless a workrelatedinjury or illness has occurred. Immunizationsand inoculations that are provided for public healthor other purposes, where there is no work-relatedinjury or illness, are not first aid or medical treatment,and do not in themselves make the caserecordable. However, when inoculations such asgamma globulin, rabies, etc. are given to treat a specificinjury or illness, or in response to workplaceexposure, medical treatment has been rendered andthe case must be recorded. The following exampleillustrates the distinction OSHA is making about inoculationsand immunizations: if a health care worker isgiven a hepatitis B shot when he or she is first hired,the action is considered first aid and the case wouldnot be recordable; on the other hand, if the samehealth care worker has been occupationally exposedto a splash of potentially contaminated blood and ahepatitis B shot is administered as prophylaxis, theshot constitutes medical treatment and the case isrecordable….OSHA believes that cleaning, flushing or soakingof wounds on the skin surface is the initial emergencytreatment for almost all surface wounds andthat these procedures do not rise to the level of medicaltreatment. This relatively simple type of treatmentdoes not require technology, training, or even a§1904.7OSHA RECORDKEEPINGHANDBOOK61

§1904.7visit to a health care professional. More seriouswounds will be captured as recordable casesbecause they will meet other recording criteria, suchas prescription medications, sutures, restricted work,or days away from work. Therefore, OSHA hasincluded cleaning, flushing or soaking of wounds onthe skin surface as an item on the first aid list. Asstated previously, OSHA does not believe that multipleapplications of first aid should constitute medicaltreatment; it is the nature of the treatment, not howmany times it is applied, that determines whether itis first aid or medical treatment….OSHA agrees with the commenters who suggestedthat [wound coverings] be considered first aidtreatment. They are included in item D of the first aidlist. Steri strips and butterfly bandages are relativelysimple and require little or no training to apply, andthus are appropriately considered first aid…....OSHA has also decided not to provide exclusionsfor first aid items based on their purpose orintent. If the medical professional decides stitches orsutures are necessary and proper for the given injury,they are medical treatment.Because OSHA has decided not to include a list ofmedical treatments in the final rule, there is no needto articulate that the use of other wound closingdevices, such as surgical staples, tapes, glues orother means are medical treatment. Because they arenot included on the first aid list, they are by definitionmedical treatment….In the final rule, OSHA has included hot and coldtreatment as first aid treatment, regardless of thenumber of times it is applied, where it is applied, orthe injury or illness to which it is applied….It is OSHA’s judgment that hot and cold treatmentis simple to apply, does not require special training,and is rarely used as the only treatment for any significantinjury or illness. If the worker has sustained asignificant injury or illness, the case almost alwaysinvolves some other form of medical treatment (suchas prescription drugs, physical therapy, or chiropractictreatment); restricted work; or days away fromwork. Therefore, there is no need to consider hot andcold therapy to be medical treatment, in and of itself.Considering hot and cold therapy to be first aid alsoclarifies and simplifies the rule, because it means thatemployers will not need to consider whether torecord when an employee uses hot or cold therapywithout the direction or guidance of a physician orother licensed health care professional….OSHA has included two items related to orthopedicdevices in the final definition of first aid. Item Fincludes “[u]sing any non-rigid means of support,such as elastic bandages, wraps, non-rigid back belts,etc. (devices with rigid stays or other systemsdesigned to immobilize parts of the body are consideredmedical treatment for recordkeeping purposes).”OSHA has included more examples of the devices(wraps and non-rigid back belts) to help make thedefinition clearer. However, OSHA believes that theuse of orthopedic devices such as splints or castsshould be considered medical treatment and not firstaid. They are typically prescribed by licensed healthcare professionals for long term use, are typicallyused for serious injuries and illnesses, and arebeyond the everyday definition of first aid….However, OSHA agrees with those commenterswho stated that the use of these devices during anemergency to stabilize an accident victim duringtransport to a medical facility is not medical treatment.In this specific situation, a splint or otherdevice is used as temporary first aid treatment, maybe applied by non-licensed personnel using commonmaterials at hand, and often does not reflect theseverity of the injury. OSHA has included this item asG on the first aid list: “[u]sing temporary immobilizationdevices while transporting an accident victim(e.g., splints, slings, neck collars, etc.).” …...[Drilling of a fingernail or toenail to relieve pressure,or draining fluid from a blister.] OSHA hasdecided to retain this item on the first aid list and toadd the lancing of blisters as well. These are bothone time treatments provided to relieve minor sorenesscaused by the pressure beneath the nail or inthe blister. These are relatively minor procedures thatare often performed by licensed personnel but mayalso be performed by the injured worker. More seriousinjuries of this type will continue to be capturedif they meet one or more of the other recording criteria.OSHA has specifically mentioned finger nails andtoenails to provide clarity. These treatments are nowincluded as item H on the first aid list…....In the final rule, OSHA has included the use ofeye patches as first aid in item I of the first aid list.Eye patches can be purchased without a prescription,and are used for both serious and non-seriousinjuries and illnesses….In the final rule, OSHA has included as item J“Removing foreign bodies from the eye using onlyirrigation or a cotton swab.” OSHA believes that it isoften difficult for the health care professional todetermine if the object is embedded or adhered tothe eye, and has not included this suggested languagein the final rule. In all probability, if the objectis embedded or adhered, it will not be removed simplywith irrigation or a cotton swab, and the case will62OSHA RECORDKEEPINGHANDBOOK

e recorded because it will require additional treatment.OSHA believes that it is appropriate to excludethose cases from the Log that involve a foreign bodyin the eye of a worker that can be removed from theeye merely by rinsing it with water (irrigation) ortouching it with a cotton swab. These cases representminor injuries that do not rise to the level requiringrecording. More significant eye injuries will be capturedby the records because they involve medicaltreatment, result in work restrictions, or cause daysaway from work….In the final rule, OSHA has decided to retain item13 essentially as proposed, and this first aid treatmentappears as item K on the first aid list. The inclusionof the phrase “other simple means” will providesome flexibility and permit simple means other thanthose listed to be considered first aid. Cases involvingmore complicated removal procedures will becaptured on the Log because they will require medicaltreatment such as prescription drugs or stitchesor will involve restricted work or days away fromwork. OSHA believes that cases involving the excisionof the outer layer of skin are not appropriatelyconsidered first aid . . .; excision of tissue requirestraining and the use of surgical instruments.Additions to the First Aid List Suggested byCommentersIn addition to comments about the first aid itemsOSHA proposed to consider first aid, a number ofcommenters asked for additional clarifications or recommendedadditions to the first aid list. The itemssuggested included exercise, chiropractic treatment,massage, debridement, poison ivy, bee stings, heatdisorders, and burns.Exercise: ...[E]xercises that amount to self-administeredphysical therapy, and are normally recommendedby a health care professional who trains theworker in the proper frequency, duration and intensityof the exercise. Physical therapy treatments arenormally provided over an extended time as therapyfor a serious injury or illness, and OSHA believes thatsuch treatments are beyond first aid and that casesrequiring them involve medical treatment.Chiropractic treatment: …OSHA does not distinguish,for recordkeeping purposes, between first aidand medical treatment cases on the basis of numberof treatments administered. OSHA also does not distinguishbetween various kinds of health care professionals,assuming they are operating within theirscope of practice. If a chiropractor provides observation,counseling, diagnostic procedures, or first aidprocedures for a work-related injury or illness, thecase would not be recordable. On the other hand, if achiropractor provides medical treatment or prescribeswork restrictions, the case would be recordable.Massage therapy: … OSHA believes that massagesare appropriately considered first aid and hasincluded them as item M in the final rule’s first aidlist. However, physical therapy or chiropractic manipulationare treatments used for more serious injuries,and are provided by licensed personnel withadvanced training and therefore rise to the level ofmedical treatment beyond first aid.Debridement: …Debridement is the surgical excision,or cutting away, of dead or contaminated tissuefrom a wound….OSHA has decided not to include debridement asa first aid treatment. This procedure must be performedby a highly trained professional using surgicalinstruments. Debridement is also usually performedin conjunction with other forms of medicaltreatment, such as sutures, prescription drugs, etc.Intravenous (IV) administration of glucose andsaline: …In the final rule …OSHA has decided not toinclude the IV administration of fluids on the first aidlist because these treatments are used for seriousmedical events, such as post-shock, dehydration orheat stroke. The administration of IVs is an advancedprocedure that can only be administered by a personwith advanced medical training, and is usually performedunder the supervision of a physician.[A commenter] also recommended three additionsto the first aid list: UV treatment of blisters,rashes and dermatitis; acupuncture, when administeredby a licensed health care professional; and electronicstimulation. After careful consideration, OSHAhas decided not to include these treatments as firstaid. Each of these treatments must be provided by aperson with specialized training, and is usuallyadministered only after recommendation by a physicianor other licensed health care professional.Several commenters asked that treatments fortwo specific types of disorders be added to the list:heat disorders and burns. OSHA has not added thesetypes of conditions to the first aid list because the listincludes treatments rather than conditions. However,OSHA has added fluids given by mouth for the reliefof heat disorders to the list, in response to commentsreceived….In the final rule, OSHA agrees … that drinking fluidsfor the relief of heat disorders is a first aid ratherthan medical treatment and item N on the final firstaid list is “drinking fluids for relief of heat stress.”§1904.7OSHA RECORDKEEPINGHANDBOOK63

§1904.7However, as discussed above, OSHA believes thatmore extensive treatment, including the administrationof fluids by intravenous injections (IV), are medicaltreatment, and more serious cases of heat disordersinvolving them must be entered into therecords. In addition, any diagnosis by a physician orother licensed health care professional of heat syncope(fainting due to heat) is recordable under paragraph1904.7(b)(6), Loss of Consciousness.Burns: ...[B]urns will be treated just as other typesof injury are, i.e., minor burn injuries will not berecordable, while more serious burns will be recordedbecause they will involve medical treatment. Forexample, a small second degree burn to the forearmthat is treated with nothing more than a bandage isnot recordable. A larger or more severe seconddegree burn that is treated with prescription creamsor antibiotics, or results in restricted work, job transfer,or days away from work is recordable. The vastmajority of first degree burns and minor seconddegree burns will not be recorded because they willnot meet the recording criteria, including medicaltreatment. However, more serious first and seconddegree burns that receive medical treatment will berecorded, and third degree burns should always berecorded because they require medical treatment….OSHA agrees...that certain treatments and interventionsrequire the professional judgment of ahealth care professional. The Agency believes thatthese matters are best left to state agencies andlicensing boards, and the final rule’s definition ofhealth care professional (see Subpart G) makes thisclear….OSHA’s reporting requirements do not in any wayinterfere with or have any impact on state workerscompensation reporting requirements. Employersare required to record certain injuries and illnessesunder the OSHA recordkeeping regulation and toobserve certain other requirements under workers’compensation law. The two laws have separate functions:workers’ compensation is designed to compensateinjured or ill workers, while the OSH Act isdesigned to prevent injuries and illnesses and to createa body of information to improve understandingof their causes. Thus, certain injuries and illnessesmay be reportable under state workers’ compensationlaw but not under the OSHA recordkeeping rule,and certain injuries and illnesses may be reportableunder the OSHA rule but not under one or moreworkers’ compensation statutes….In response, OSHA notes that the list is part of adefinition that sets mandatory recording and report-ing requirements and is a part of the regulation itself.Including the first aid list as a non-mandatory appendixwould provide additional flexibility for futureupdates, but doing so would not meet the purposesfor which the list is intended. The list is mandatory,and making it non-mandatory would only introduceadditional confusion about what is or is not to beentered into the records….Paragraph 1904.7(b)(6) Loss of ConsciousnessThe final rule, like the former rule, requires theemployer to record any work-related injury or illnessresulting in a loss of consciousness. The recording ofoccupational injuries and illnesses resulting in loss ofconsciousness is clearly required by Sections 8(c)and 24 of the OSH Act. The new rule differs from theformer rule only in clearly applying the loss of consciousnesscriterion to illnesses as well as injuries.Since the former rule required the recording of all illnesses,illnesses involving loss of consciousnesswere recordable, and thus OSHA expects that thisclarification will not change recording practices.Thus, any time a worker becomes unconscious as aresult of a workplace exposure to chemicals, heat, anoxygen deficient environment, a blow to the head, orsome other workplace hazard that causes loss of consciousness,the employer must record the case….OSHA agrees …that, in order to be a recordableevent, a loss of consciousness must be the result of aworkplace event or exposure. Loss of consciousnessis no different, in this respect, from any other injuryor illness. The exceptions to the presumption ofwork-relationship at Section 1904.5(b)(2)(ii) allow theemployer to exclude cases that “involve signs orsymptoms that surface at work but result solely froma non-work-related event or exposure that occursoutside the work environment.” This exception allowsthe employer to exclude cases where a loss of consciousnessis due solely to a personal health condition,such as epilepsy, diabetes, or narcolepsy….The final rule does not contain an exception forloss of consciousness associated with phobias orfirst aid treatment. OSHA notes, however, that theexception at paragraph 1904.5(b)(2)(iii) allows theemployer to rebut the presumption of work relationshipif “the injury or illness results solely from voluntaryparticipation in a wellness program or in a medical,fitness, or recreational activity such as blooddonation, physical, flu shot, exercise class, racquetball,or baseball.” This exception would eliminate therecording of fainting episodes involving voluntaryvaccination programs, blood donations and the like.64OSHA RECORDKEEPINGHANDBOOK

However, episodes of fainting from mandatory medicalprocedures such as blood tests mandated byOSHA standards, mandatory physicals, and so onwould be considered work-related events, and wouldbe recordable on the Log if they meet one or more ofthe recording criteria. Similarly, a fainting episodeinvolving a phobia stemming from an event or exposurein the work environment would be recordable…....In this final rule, OSHA has not included a separatedefinition for the term “loss of consciousness.”However, the language of paragraph 1904.7(b)(6) hasbeen carefully crafted to address two issues. First,the paragraph refers to a worker becoming “unconscious,”which means a complete loss of consciousnessand not a sense of disorientation, “feelingwoozy,” or a other diminished level of awareness.Second, the final rule makes it clear that loss of consciousnessdoes not depend on the amount of timethe employee is unconscious. If the employee is renderedunconscious for any length of time, no matterhow brief, the case must be recorded on the OSHA300 Log.Paragraph 1904.7(b)(7) Recording Significant Work-Related Injuries and Illnesses Diagnosed by aPhysician or Other Licensed Health Care ProfessionalParagraph 1904.7(b)(7) of this final rule requires therecording of any significant work-related injury or illnessdiagnosed by a physician or other licensedhealth care professional. Paragraph 1904.7(b)(7) clarifieswhich significant, diagnosed work-related injuriesand illnesses OSHA requires the employer to recordin those rare cases where a significant work-relatedinjury or illness has not triggered recording underone or more of the general recording criteria, i.e, hasnot resulted in death, loss of consciousness, medicaltreatment beyond first aid, restricted work or jobtransfer, or days away from work. Based on theAgency’s prior recordkeeping experience, OSHAbelieves that the great majority of significant occupationalinjuries and illnesses will be captured by oneor more of the other general recording criteria inSection 1904.7. However, OSHA has found that thereis a limited class of significant work-related injuriesand illnesses that may not be captured under theother Section 1904.7 criteria. Therefore, the final rulestipulates at paragraph 1904.7(b)(7) that any significantwork-related occupational injury or illness that isnot captured by any of the general recording criteriabut is diagnosed by a physician or other licensedhealth care professional be recorded in the employer’srecords.Under the final rule, an injury or illness case isconsidered significant if it is a work-related caseinvolving occupational cancer (e.g., mesothelioma),chronic irreversible disease (e.g., chronic berylliumdisease), a fractured or cracked bone (e.g., brokenarm, cracked rib), or a punctured eardrum. Theemployer must record such cases within 7 days ofreceiving a diagnosis from a physician or otherlicensed health care professional that an injury or illnessof this kind has occurred…....[T]here are some significant injuries, such as apunctured eardrum or a fractured toe or rib, forwhich neither medical treatment nor work restrictionsmay be administered or recommended.There are also a number of significant occupationaldiseases that progress once the disease processbegins or reaches a certain point, such as byssinosis,silicosis, and some types of cancer, for which medicaltreatment or work restrictions may not be recommendedat the time of diagnosis, although medicaltreatment and loss of work certainly will occur atlater stages. This provision of the final rule isdesigned to capture this small group of significantwork-related cases. Although the employer isrequired to record these illnesses even if they manifestthemselves after the employee leaves employment(assuming the illness meets the standards forwork-relatedness that apply to all recordable incidents),these cases are less likely to be recorded oncethe employee has left employment. OSHA believesthat work-related cancer, chronic irreversible diseases,fractures of bones or teeth and puncturedeardrums are generally recognized as constitutingsignificant diagnoses and, if the condition is workrelated,are appropriately recorded at the time of initialdiagnosis even if, at that time, medical treatmentor work restrictions are not recommended.As discussed in the Legal Authority section,above, OSHA has modified the Agency’s prior positionso that, under the final rule, minor occupationalillnesses no longer are required to be recorded onthe Log. The requirement pertaining to the recordingof all significant diagnosed injuries and illnesses inthis paragraph of the final rule, on the other hand,will ensure that all significant (non-minor) injuriesand illnesses are in fact captured on the Log, asrequired by the OSH Act. Requiring significant casesinvolving diagnosis to be recorded will help toachieve several of the goals of this rulemaking. First,adherence to this requirement will produce betterdata on occupational injury and illness by providingfor more complete recording of significant occupationalconditions. Second, this requirement will producemore timely records because it provides for the§1904.7OSHA RECORDKEEPINGHANDBOOK65

§1904.766immediate recording of significant disorders on firstdiagnosis. Many occupational illnesses manifestthemselves through gradual onset and worsening ofthe condition. In some cases, a worker could be diagnosedwith a significant illness, such as an irreversiblerespiratory disorder, not be given medicaltreatment because no effective treatment was available,not lose time from work because the illness wasnot debilitating at the time, and not have his or hercase recorded on the Log because none of therecording criteria had been met. If such a worker leftemployment or changed employers before one of theother recording criteria had been met, this seriousoccupational illness case would never be recorded.The requirements in paragraph 1904.7(b)(7) remedythis deficiency and will thus ensure the capture ofmore complete and timely data on these injuries andillnesses….OSHA agrees with those commenters who supportedthe inclusion in the final rule of an additionalmechanism to ensure the capture of significant workrelatedinjuries and illnesses that are diagnosed by aphysician or other licensed health care professionalbut do not, at least at the time of diagnosis, meet thecriteria of death, days away from work, restrictedwork or job transfer, medical treatment beyond firstaid, or loss of consciousness. The recording of allnon-minor injuries and illnesses is consistent withthe OSH Act (see the Legal Authority section) and hasbeen the intent of the recordkeeping system formany years. The primary goal of the requirement atparagraph 1904.7(b)(7) is to produce more accurateand complete data on non-minor work-relatedinjuries and illnesses. Because the number of significantwork-related injuries and illnesses may not becaptured by one or more of the other general recordingcriteria, OSHA finds that this additional criterionis needed. However, OSHA believes that most caseswill be captured by the general recording criteria…....[T]o address the gap in case capture presentedby significant injury and illness cases that escape thegeneral recording criteria, OSHA is requiring employersto record cases of chronic, irreversible diseaseunder the Section 1904.7(b)(7) criterion. This meansthat if long-term workplace exposure to anilineresults in a chronic, irreversible liver or kidney disease,the case would be recordable at the time ofdiagnosis, even if no medical treatment is administeredat that time and no time is lost from work. Theregulatory text of paragraph 1904.7(b)(7) limits thetypes of conditions that are recordable, however, tosignificant diagnosed injury and illness cases, whichare defined as cancer, chronic irreversible diseases,fractured or cracked bones, and punctured eardrums.OSHA RECORDKEEPINGHow Should the Agency Define “Significant” Injuryor Illness?...OSHA believes that the conditions that are requiredto be recorded under Section 1904.7(b)(7) of the finalrule represent significant occupational injuries and illnessesas described in the OSH Act. Some clearlysignificant injuries or illnesses are not amenable tomedical treatment, at least at the time of initial diagnosis.For example, a fractured rib, a broken toe, or apunctured eardrum are often, after being diagnosed,left to heal on their own without medical treatmentand may not result in days away from work, but theyare clearly significant injuries. Similarly, an untreatableoccupational cancer is clearly a significant injuryor illness. The second set of conditions identified inparagraph 1904.7(b)(7), chronic irreversible diseases,are cases that would clearly become recordable atsome point in the future (unless the employee leavesemployment before medical treatment is provided),when the employee’s condition worsens to a pointwhere medical treatment, time away from work, orrestricted work are needed. By providing for recordingat the time of diagnosis, paragraph 1904.7(b)(7) ofthe final rule makes the significant, work-related conditionrecordable on discovery, a method thatensures the collection to timely data. This approachwill result in better injury and illness data and also islikely to be more straightforward for employers tocomply with, since there is no further need to trackthe case to determine whether, and at what point, itbecomes recordable.The core of the recording requirement codified atSection 1904.7(b)(7) is the employer’s determinationthat a “significant” injury or illness has been diagnosed….Inthe final rule, OSHA has adopted anapproach...focusing on two types of injury and illness:those that may be essentially untreatable, atleast in the early stages and perhaps never (fracturedand cracked bones, certain types of occupational cancer,and punctured eardrums) and those expected toprogressively worsen and become serious over time(chronic irreversible diseases). ...[T]he final rule reliesexclusively on the diagnosis of a limited class ofinjuries and illnesses by a physician or other licensedhealth care professional.Clarifying That Cases Captured by Paragraph1904.7(b)(7) Must Be Work Related...OSHA wishes to reiterate that any condition that isrecordable on the OSHA injury and illness recordkeepingforms must be work-related, and Section1904.7(b)(7) includes the term “work-related” to makethis fact clear. In addition, because the employer willbe dealing with a physician or other licensed healthHANDBOOK

care professional, he or she may also be able to consultwith the health care professional about the workrelatednessof the particular case. If the employerdetermines, based either on his or her own findingsor those of the professional, that the symptoms aremerely arising at work, but are caused by some nonworkillness, then the case would not be recorded,under exception (b)(2)(ii) to the work-relatedness presumptionat Section 1904.5(b)(2) of the final rule.Similarly, if workplace events or exposures contributedonly insignificantly to the aggravation of aworker’s preexisting condition, the case need not berecorded under Section 1904.5(a) and Section1904.5(b)(3) of the final rule.The provisions of Section 1904.7(b)(7) of the finalrule thus meet the objectives of (1) capturing significantinjuries and illnesses that do not meet the othergeneral recording criteria of death, days away fromwork, restricted work or job transfer, medical treatmentbeyond first aid, or loss of consciousness; (2)excluding minor injuries and illnesses; (3) addressinga limited range of disorders; and (4) making it clearthat these injuries and illnesses must be work-relatedbefore they must be recorded.FREQUENTLY ASKED QUESTIONS: Section 1904.7 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.7 General recording criteriaQuestion 7-1. The old rule required the recording ofall occupational illnesses, regardless of severity. Forexample, a work-related skin rash was recorded evenif it didn’t result in medical treatment. Does the rulestill capture these minor illness cases?No. Under the new rule, injuries and illnesses arerecorded using the same criteria. As a result, someminor illness cases are no longer recordable. Forexample, a case of work-related skin rash is nowrecorded only if it results in days away from work,restricted work, transfer to another job, or medicaltreatment beyond first aid.Question 7-2. Does the size or degree of a burndetermine recordability?Question 7-4. An employee hurts his or her left armand is told by the doctor not to use the left arm forone week. The employee is able to perform all of hisor her routine job functions using only the right arm(though at a slower pace and the employee is neverrequired to use both arms to perform his or her jobfunctions). Would this be considered restricted work?No. If the employee is able to perform all of his orher routine job functions (activities the employee regularlyperforms at least once per week), the casedoes not involve restricted work. Loss of productivityis not considered restricted work.Question 7-5. Are surgical glues used to treat lacerationsconsidered “first aid?”No. The size or degree of a work-related burn doesnot determine recordability. If a work-related first,second, or third degree burn results in one or moreof the outcomes in section 1904.7 (days away, workrestrictions, medical treatment, etc.), the case mustbe recorded.Question 7-3. If an employee dies during surgerymade necessary by a work-related injury or illness, isthe case recordable? What if the surgery occursweeks or months after the date of the injury or illness?If an employee dies as a result of surgery or othercomplications following a work-related injury or illness,the case is recordable. If the underlying injuryor illness was recorded prior to the employee’s death,the employer must update the Log by lining outinformation on less severe outcomes, e.g., days awayfrom work or restricted work, and checking the columnindicating death.No. surgical glue is a wound closing device. Allwound closing devices except for butterfly and steristrips are by definition “medical treatment,” becausethey are not included on the first aid list.Question 7-6. Item N on the first aid list is “drinkingfluids for relief of heat stress.” Does this includeadministering intravenous (IV) fluids?No. Intravenous administration of fluids to treatwork-related heat stress is medical treatment.Question 7-7. Is the use of a rigid finger guard consideredfirst aid?Yes. The use of finger guards is always first aid.Question 7-8. For medications such as Ibuprofen thatare available in both prescription and non-prescriptionform, what is considered to be prescription§1904.7OSHA RECORDKEEPINGHANDBOOK67

§1904.7strength? How is an employer to determine whethera non-prescription medication has been recommendedat prescription strength for purposes of section1904.7(b)(5)(i)(C)(ii)(A)?The prescription strength of such medications isdetermined by the measured quantity of the theraputicagent to be taken at one time, i.e., a singledose. The single dosages that are considered prescriptionstrength for four common over-the-counterdrugs are:Ibuprofen (such as Advil TM ;) - Greater than 467 mgDiphenhydramine (such as Benadryl TM ;) - Greaterthan 50 mgNaproxen Sodium (such as Aleve TM ;) - Greaterthan 220 mgKetoprofen (such as Orudus KT TM ;) - Greater than25mgTo determine the prescription-strength dosages forother drugs that are available in prescription and nonprescriptionformulations, the employer should contactOSHA, the United States Food and Drug Administration,their local pharmacist or their physician.Question 7-9 If an employee who sustains a workrelatedinjury requiring days away from work is terminatedfor drug use based on the results of a post-accidentdrug test, how is the case recorded? May theemployer stop the day count upon termination of theemployee for drug use under section 1904.7(b)(3) (vii)?Under section 1904.7(b)(3)(vii), the employer maystop counting days away from work if an employeewho is away from work because of an injury or illnessleaves the company for some reason unrelatedto the injury or illness, such as retirement or a plantclosing. However, when the employer conducts adrug test based on the occurrence of an accidentresulting in an injury at work and subsequently terminatesthe injured employee, the termination isrelated to the injury. Therefore, the employer mustestimate the number of days that the employeewould have been away from work due to the injuryand enter that number on the 300 Log.Question 7-10. Once an employer has recorded acase involving days away from work, restricted workor medical treatment and the employee has returnedto his regular work or has received the course of recommendedmedical treatment, is it permissible forthe employer to delete the Log entry based on aphysician’s recommendation, made during a year-endreview of the Log, that the days away from work,work restriction or medical treatment were not necessary?The employer must make an initial decision aboutthe need for days away from work, a work restriction,or medical treatment based on the information available,including any recommendation by a physicianor other licensed health care professional. Where theemployer receives contemporaneous recommendationsfrom two or more physicians or other licensedhealth care professionals about the need for daysaway, a work restriction, or medical treatment, theemployer may decide which recommendation is themost authoritative and record the case based on thatrecommendation. Once the days away from work orwork restriction have occurred or medical treatmenthas been given, however, the employer may notdelete the Log entry because of a physician’s recommendation,based on a year-end review of the Log,that the days away, restriction or treatment wereunnecessary.Question 7-10a. If a physician or other licensedhealth care professional recommends medical treatment,days away from work or restricted work activityas a result of a work-related injury or illness canthe employer decline to record the case based on acontemporaneous second provider’s opinion that therecommended medical treatment, days away fromwork or work restriction are unnecessary, if theemployer believes the second opinion is moreauthoritative?Yes. However, once medical treatment is provided fora work-related injury or illness, or days away fromwork or work restriction have occurred, the case isrecordable. If there are conflicting contemporaneousrecommendations regarding medical treatment, orthe need for days away from work or restricted workactivity, but the medical treatment is not actually providedand no days away from work or days of workrestriction have occurred, the employer may determinewhich recommendation is the most authoritativeand record on that basis. In the case of prescriptionmedications, OSHA considers that medical treatmentis provided once a prescription is issued.Question 7-11. Section 1904.7(b)(5)(ii) of the ruledefines first aid, in part, as “removing splinters orforeign material from areas other than the eye byirrigation, tweezers, cotton swabs or other simplemeans.” What are “other simple means” of removingsplinters that are considered first aid?68OSHA RECORDKEEPINGHANDBOOK

“Other simple means” of removing splinters, for purposesof the first-aid definition, means methods thatare reasonably comparable to the listed methods.Using needles, pins or small tools to extract splinterswould generally be included.Question 7-12. How long must a modification to ajob last before it can be considered a permanentmodification under section 1904.7(b)(4)(xi)?Section 1904.7(b)(4)(xi) of the rule allows an employerto stop counting days of restricted work or transferto another job if the restriction or transfer is madepermanent. A permanent restriction or transfer is onethat is expected to last for the remainder of theemployee’s career. Where the restriction or transfer isdetermined to be permanent at the time it is ordered,the employer must count at least one day of therestriction or transfer on the Log. If the employeewhose work is restricted or who is transferred toanother job is expected to return to his or her formerjob duties at a later date, the restriction or transfer isconsidered temporary rather than permanent.Question 7-13. If an employee loses his arm in awork-related accident and can never return to hisjob, how is the case recorded? Is the day countcapped at 180 days?If an employee never returns to work following awork-related injury, the employer must check the“days away from work” column, and enter an estimateof the number of days the employee wouldhave required to recuperate from the injury, up to180 days.Question 7-14. If an employee who routinely worksten hours a day is restricted from working more thaneight hours following a work-related injury, is thecase recordable?Generally, the employer must record any case inwhich an employee’s work is restricted because of awork-related injury. A work restriction, as defined insection 1904.7(b)(4)(i)(A), occurs when the employerkeeps the employee from performing one or moreroutine functions of the job, or from working the fullworkday the employee would otherwise have beenscheduled to work. The case in question is recordableif the employee would have worked 10 hours had heor she not been injured.Question 7-15. If an employee is exposed to chlorineor some other substance at work and oxygen isadministered as a precautionary measure, is the caserecordable?If oxygen is administered as a purely precautionarymeasure to an employee who does not exhibit anysymptoms of an injury or illness, the case is notrecordable. If the employee exposed to a substanceexhibits symptoms of an injury or illness, the administrationof oxygen makes the case recordable.Question 7-16. Is the employer subject to a citationfor violating section 1904.7(b)(4)(viii) if an employeefails to follow a recommended work restriction?Section 1904.7(b)(4)(viii) deals with the recordabilityof cases in which a physician or other health careprofessional has recommended a work restriction.The section also states that the employer “shouldensure that the employee complies with the [recommended]restriction.” This language is purely advisoryand does not impose an enforceable duty uponemployers to ensure that employees comply with therecommended restriction. [Note: In the absence ofconflicting opinions from two or more health careprofessionals, the employer ordinarily must recordthe case if a health care professional recommends awork restriction involving the employee’s routine jobfunctions.]Question 7-17. Are work-related cases involvingchipped or broken teeth recordable?Yes, under section 1904.7(b)(7), these cases are considereda significant injury or illness when diagnosedby a physician or other health care professional. Asdiscussed in the preamble of the final rule, workrelatedfractures of bones or teeth are recognized asconstituting significant diagnoses and, if the conditionis work-related, are appropriately recorded at thetime of initial diagnosis even if the case does notinvolve any of the other general recording criteria.Question 7-18. How would the employer record thechange on the OSHA 300 Log for an injury or illnessafter the injured worker reached the cap of 180 daysfor restricted work and then was assigned to “daysaway from work”?The employer must check the box that reflects themost severe outcome associated with a given injury§1904.7OSHA RECORDKEEPINGHANDBOOK69

§1904.7or illness. The severity of any case decreases on thelog from column G (Death) to column J (Otherrecordable case). Since days away from work is amore severe outcome than restricted work theemployer is required to remove the check initiallyplaced in the box for job transfer or restriction andenter a check in the box for days away from work(column H). Employers are allowed to cap the numberof days away and/or restricted work/job transferwhen a case involves 180 calendar days. For purposesof recordability, the employer would enter 180days in the “Job transfer or restriction” column andmay also enter 1 day in the “Days away from work”column to prevent confusion or computer relatedproblems.Question 7-19. Does the employer have to record awork-related injury and illness if an employee experiencesminor musculoskeletal discomfort, the healthcare professional determines that the employee isfully able to perform all of his or her routine job functions,but the employer assigns a work restriction tothe injured employee?As set out in Chapter 2, I., F. of the RecordkeepingPolicies and Procedures Manual (CPL 2-0.135) a casewould not be recorded under section 1904.7(b)(4) if(1) the employee experiences minor musculoskeletaldiscomfort, and (2) a health care professional determinesthat the employee is fully able to perform allof his or her routine job functions, and (3) theemployer assigns a work restriction to that employeefor the purpose of preventing a more serious conditionfrom developing. If a case is or becomes recordableunder any other general recording criteria containedin section 1904.7, such as medical treatmentbeyond first aid, a case involving minor musculoskeletaldiscomfort would be recordable.Question 7-20. Are injuries and illnesses recordable ifthey occurred during employment, but were not discovereduntil after the injured or ill employee wasterminated or retired?These cases are recordable throughout the five-yearrecord retention and updating period contained insection 1904.33. The cases would be recorded oneither the log of the year in which the injury or illnessoccurred or the last date of employment.Question 7-21. If an employee leaves the companyafter experiencing a work-related injury or illnessthat results in days away from work and/or days ofrestricted work/job transfer how would an employerrecord the case?If the employee leaves the company for some reason(s)unrelated to the injury or illness, section1904.7(b)(3)(viii) of the rule allows the employer tostop counting days away from work or days ofrestriction/job transfer. In order to stop a count theemployer must first have a count to stop. Thus, theemployer must count at least one day away fromwork or day of restriction/job transfer on the OSHA300 Log. If the employee leaves the company forsome reason(s) related to the injury or illness, section1904.7(b)(3)(viii) of the rule directs the employer tomake an estimate of the count of days away fromwork or days of restriction/job transfer expected forthe particular type of case.Question 7-22 If an employee has an adverse reactionto a smallpox vaccination, is it recordable underOSHA’s recordkeeping rule?If an employee has an adverse reaction to a smallpoxvaccination, the reaction is recordable if it is workrelated(see 29 CFR 1904.5) and meets the generalrecording criteria contained in 29 CFR 1904.7. A reactioncaused by a smallpox vaccination is work-relatedif the vaccination was necessary to enable theemployee to perform his or her work duties. Such areaction is work-related even though the employeewas not required to receive it, if the vaccine was providedby the employer to protect the employeeagainst exposure to smallpox in the work environment.For example, if a health care employer establishesa program to vaccinate employees who maybe involved in treating people suffering from theeffects of a smallpox outbreak, reactions to the vaccinewould be work-related. The same principleapplies to adverse reactions among emergencyresponse workers whose duties may cause them tobe exposed to smallpox. The vaccinations in this circumstanceare analogous to inoculations given toemployees to immunize them from diseases to whichthey may be exposed to in the course of work-relatedoverseas travel.Question 7-23. An employee has a work-relatedshoulder injury resulting in days of restricted workactivity. While working on restricted duty, theemployee sustains a foot injury which results in adifferent work restriction. How would the employerrecord these cases?70OSHA RECORDKEEPINGHANDBOOK

For purposes of OSHA recordkeeping the employerwould stop the count of the days of restricted workactivity due to the first case, the shoulder injury, andenter the foot injury as a new case and record thenumber of restricted work days. If the restrictionrelated to the second case, the foot injury, is liftedand the employee is still subject to the restrictionrelated to their shoulder injury, the employer mustresume the count of days of restricted work activityfor that case.Question 7-24. An employee is provided antibioticsfor anthrax, although the employee does not testpositive for exposure/infection. Is this a recordableevent on the OSHA log?No. A case must involve a death, injury, or illness tobe recordable. A case involving an employee whodoes not test positive for exposure/infection wouldnot be recordable because the employee is notinjured or ill.Question 7-25. An employee tests positive foranthrax exposure/infection and is provided antibiotics.Is this a recordable event on the OSHA log?Yes. Under the most recent Recordkeeping requirements,which will be effective in January 2002, awork-related anthrax exposure/infection coupled withadministration of antibiotics or other medical treatmentmust be recorded on the log. Until the newRecordkeeping requirements become effective, anemployer is required to record a work-related illness,regardless of whether medical care is provided inconnection with the illness.LETTERS OF INTERPRETATION: Section 1904.7Section 1904.7 General recording criteriaOSHA requirements are set by statute, standards and regulations. Letters of interpretation explainthese requirements and how they apply to particular circumstances, but they cannot create additionalemployer obligations. These letters constitute OSHA’s interpretation of the requirements discussed.Note that OSHA enforcement guidance may be affected by changes to OSHA rules. Also, from time totime we update our guidance in response to new information. To keep apprised of such developments,you can consult OSHA’s website at http://www.osha.gov.Letters of Interpretation constitute OSHA’s interpretation only of the requirements discussed and maynot be applicable to any situation not delineated within the original correspondence.Letter of interpretation related to section 1904.7(b)(5)(ii) –Use of glue to close a wound is medical treatment; prescription antibiotics/antiseptics for preventivetreatment of a wound is medical treatment.August 26, 2004§1904.7Mr. Ronald BjorkManager, Safety, Health & SecurityCNH America LLCEast Moline Plant1100 Third StreetEast Moline, IL 61244Dear Mr. Bjork:This is in response to your letter of April 21, 2004 requesting clarification whether two types oftreatments constitute first aid or medical treatment for purposes of applying OSHA's recordkeepingrule.OSHA RECORDKEEPINGHANDBOOK71

The first treatment is glue used to close a wound. The use of medical glue to close a wound is notfirst aid, and therefore must be considered medical treatment. First aid includes the use of the followingwound-covering devices: bandages, Band Aids©, gauze pads, butterfly bandages, or Steri-Strips©, 29 CFR 1904.7(b)(5)(ii)(D). Other wound-closing devices, such as sutures, staples, tapes,or glues are considered medical treatment. See 66 FR 5989 (January 19, 2001).The second treatment is the use of a prescription antibiotic for a puncture wound. Under the rule,the use of prescription medication to treat a wound is medical treatment. This follows even if themedication is an antibiotic or antiseptic administered following an injury to prevent a possibleinfection. In the preamble to the rule, OSHA specifically considered and rejected an exception forprescription antibiotics or antiseptics. See 66 FR 5986.Thank you for your interest in occupational safety and health. We hope you find this informationhelpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation lettersexplain these requirements and how they apply to particular circumstances, but they cannotcreate additional employer obligations. This letter constitutes OSHA’s interpretation of the requirementsdiscussed. Note that our enforcement guidance may be affected by changes to OSHA rules.In addition, from time to time we update our guidance in response to new information. To keepapprised of such developments, you can consult OSHA's website at http://www.osha.gov. If youhave any further questions, please contact my Division of Recordkeeping Requirements, at 202-693-1702.Sincerely,Keith Goddard, DirectorDirectorate of Evaluation and AnalysisLetter of interpretation related to sections 1904.5, 1904.5(a), 1904.5(b)(2), 1904.6, 1904.6(a), 1904.7 and 1904.31 –Evaluation of seven scenarios for work-relatedness and recordkeeping requirements.January 15, 2004Ms. Leann M. Johnson-Koch1200 Nineteenth Street, N.W.Washington, D.C. 20036-2412§1904.7Dear Ms. Johnson-Koch:Thank you for your E-mail to the Occupational Safety and Health Administration (OSHA) regardingthe Injury and Illness Recording and Reporting Requirements contained in 29 CFR Part 1904. Your letterwas forwarded to my office by Richard Fairfax, Director, Directorate of Enforcement Programs. TheDivision of Recordkeeping Requirements is responsible for the administration of the OSHA injury andillness recordkeeping system nationwide. Please excuse the delay in responding to your request.In your letter, you ask OSHA to clarify the following scenarios to ensure accurate and consistent guidanceto your members for purposes of OSHA Recordkeeping requirements. I will address your scenariosby first restating each one and then answering it.Scenario 1:• An employee reported to work at 7:00 a.m.• At 12:15 p.m. the employee reported that his toes on his left foot had started swelling and his foothad started hurting.• The employee wanted to go to a doctor for evaluation.• On the First Report of Injury, that the employee completed before he went to the doctor, the employeeindicated that the cause of the illness was “unknown (feet wet at cooling tower).”72OSHA RECORDKEEPINGHANDBOOK

• When answering the doctor’s question: “How did injury occur?” the employee answered that the onlything he could think of was that his feet were wet all the previous day due to work in the morning at acooling tower. The cooling tower water is treated to remove bacteria and then used in process operationsin the plant.• The doctor described the illness/injury as foot edema/cellulitis.• The doctor also prescribed the injury as an occupational disease, prescribed an antibiotic, and theemployee missed one day of work.• The company sent the employee to a second doctor who said to continue using the antibiotic.• Neither doctor could state conclusively that the foot edema/cellulitis was or was not due to theemployee’s feet being wet due to work at the cooling tower.• Neither doctor is a specialist in skin disorders.• During an incident review at the site, the employee again said he did not know if his feet being wet allday the previous day caused the injury/illness.• The employee also stated that he had not worn the personal protective equipment, rubber boots, prescribedfor this task.The company determined that this injury/illness is not work-related (did not occur in the course of or asa result of employment), since neither physician nor the employee can state with certainty that theinjury/illness was caused by the employee’s feet being wet all day due to work at the cooling tower. Sincethe injury/illness was determined to not be work-related, then the company deemed the incident nonrecordable.Response: A case is work-related if it is more likely than not that an event or exposure in the work environmentwas a cause of the injury or illness. The work event or exposure need only be one of the causes; it notneed to be the sole or predominant cause. In this case, the fact that neither the physician nor the employeecould state with certainty that the employee’s edema was caused by working with wet feet is not dispositive.The physician’s description of the edema as an “occupational disease,” and the employee’s statementthat working with wet feet was “the only thing he could of” as the cause, indicate that it is more likelythan not that working with wet feet was a cause. The case should be recorded on the OSHA 300 Log.Scenario 2:An employee must report to work by 8:00 a.m.• The employee drove into the company parking lot at 7:30 a.m. and parked the car.• The employee exited the car and proceeded to the office to report to work.• The parking lot and sidewalks are privately owned by the facility and both are within the propertyline, but not the controlled access points (i.e., fence, guards).• The employee stepped onto the sidewalk and slipped on the snow and ice.• The employee suffered a back injury and missed multiple days of work.The company believes that the employee was still in the process of the commute to work since theemployee had not yet checked in at the office. Since a work task was not being performed, the site personneldeemed the incident not work-related and therefore not recordable.Response: Company parking lots and sidewalks are part of the employer’s establishment for recordkeepingpurposes. Here, the employee slipped on an icy sidewalk while walking to the office to report forwork. In addition, the event or exposure that occurred does not meet any of the work-related exceptionscontained in 1904.5(b)(2). The employee was on the sidewalk because of work; therefore, the case iswork-related regardless of the fact that he had not actually checked in.§1904.7Scenario 3:The employee described in Scenario 2 missed 31 days of work due to the back injury.• On day 31, the doctor provided a release for returning to work.• The next morning (day 32), when the employee was due to report to work, the employee stated thathis back was hurting, and the employee did not report to work.• The employee scheduled a doctor’s appointment, with the same doctor, and visited the doctor on day 33.• The doctor issued a statement stating that the employee was not able to return to work.Since the employee was released to return to work, the company does not believe it has to count theintervening two days on the OSHA log.OSHA RECORDKEEPINGHANDBOOK73

Response: The employer would have to enter the additional days away from work on the OSHA 300log based on receiving information from the physician or other licensed health care professional that theemployee was unable to work.Scenario 4:• An employee reports to work.• Several hours later, the employee goes outside for a “smoke break.”• The employee slips on the ice and injures his back.Since the employee was not performing a task related to the employee’s work, the company has deemedthis incident non-work related and therefore not recordable.Response: Under Section 1904.5(b)(2)(v), an injury or illness is not work-related if it is solely the resultof an employee doing personal tasks (unrelated to their employment) at the establishment outside of theemployee’s assigned working hours. In order for this exception to apply, the case must meet both of thestated conditions. The exception does not apply here because the injury or illness occurred within normalworking hours. Therefore, your case in question is work-related, and if it meets the general recordingcriteria under Section 1904.7 the case must be recorded.Scenario 5:• An employee drives into the company parking lot at 7:30 a.m., exits his car, and proceeds to cross theparking lot to clock-in to work.• A second employee, also on the way to work, approaches the first employee, and the two individualsget into a physical altercation in the parking lot. The first employee breaks an arm during the altercation.• The employee goes to the doctor and receives medical treatment for his injury.The company deems this non-work related, and therefore non-recordable, since the employees had notyet reported to work and a work task was not being performed at the time of the altercation.Response: The recordkeeping regulation contains no general exception for purposes of determiningwork-relationship for cases involving acts of violence in the work environment. Company parkinglots/access roads are part of the employer’s premises and therefore part of the employer’s establishment.Whether the employee had not clocked in to work does not affect the outcome for determining workrelatedness.The case is recordable on the OSHA log, because the injury meets the general recording criteriacontained in Section 1904.7.§1904.7Scenario 6:• An employee injured a knee performing work-related activities in 2001.• The accident was OSHA recordable and subject to worker’s compensation.• The employee had arthroscopic knee surgery eleven months later and was released to full duty amonth and a half after the arthroscopic surgery.• The employee had a second knee injury three months after the return to work release (after the firstsurgery).• Post-surgery (second surgery), the doctor prescribed Vioxx® as an anti-inflammatory.• Approximately one and one-half months after the second knee surgery, the employee was given anotherfull release to return to work full duty and returned to work.• However, the doctor told the employee to continue to take Vioxx® as prescribed (as needed) and toreturn to the doctor as needed.• The employee scheduled a follow-up appointment with the doctor.• The day before the appointment, the employee bumped his knee at work.• During his scheduled doctor’s appointment (was to be the last follow-up visit) the employee mentionedthe latest incident (bumping the knee) to the doctor and showed him where the pain was occurringdue to bumping his knee.• The doctor stated that the employee had an inflamed tendon (Grade 1 lateral collateral ligamentsprain) that was not part of the initial surgery (patellar tendonitis).• The doctor stated in the diagnosis that the original injury that required knee surgery was resolved.• The doctor told the employee to continue taking Vioxx® for the inflamed tendon.Since the employee was already taking the medication prescribed (Vioxx®), the site does not believe thisis recordable as a second incident.74OSHA RECORDKEEPINGHANDBOOK

Response: In the recordkeeping regulation, the employer is required to follow any determination a physicianor other licensed health care professional has made about the status of a new case. The inflamedtendon is a new case because the employee had completely recovered from the previous injury and illnessand a new event or exposure had occurred in the work environment. Therefore, for purposes ofOSHA recordkeeping, the employer would enter the case on the OSHA 300 log as appropriate.Scenario 7:• A site hired numerous temporary workers at its plant.• Three temporary workers were injured.• They each received injuries that were recordable on the OSHA 300 Log.• The employees were under the direct supervision of the site.Is it correct that these injuries were recordable on the site log or should they have been recordable on thetemp agency log? What are the criteria related to temporary workers that need to be reviewed to determinewhich OSHA log is appropriate for recording the injury/illness?Response: Section 1904.31 states that the employer must record the injuries and illnesses that occur toemployees not on its payroll if it supervises them on a day-to-day basis. Day-to-day supervision generallyexists when the employer “supervises not only the output, product, or result to be accomplished by theperson’s work, but also the details, means, methods, and processes by which the work objective isaccomplished.”Thank you for your interest in occupational safety and health. We hope you find this information helpful.OSHA requirements are set by statute, standards and regulations. Our interpretation letters explainthese requirements and how they apply to particular circumstances, but they cannot create additionalemployer obligations. This letter constitutes OSHA’s interpretation of the requirements discussed. Notethat our enforcement guidance may be affected by changes to OSHA rules. In addition, from time totime we update our guidance in response to new information. To keep appraised of such developments,you can consult OSHA’s website at http://www.osha.gov. If you have any further questions, please contactthe Division of Recordkeeping Requirements, at 202-693-1702.Sincerely,Frank FrodymaActing Director§1904.7OSHA RECORDKEEPINGHANDBOOK75

Letter of interpretation related to sections 1904.7(b)(3), 1904.7(b)(3)(ii) and 1904.7(b)(3)(iii) –Results of an MRI do not negate the recordability of a physician’s recommendation.March 19, 2003Ms. Marcia SeelerHealth and Safety ConsultantPost Office Box 3154Wellfleet, Massachusetts 02667Dear Ms. Seeler:Thank you for your January 6, 2003 letter to the Occupational Safety and Health Administration(OSHA) regarding the Injury and Illness Recording and Reporting requirements contained in 29CFR Part 1904. You state that an employee who sustained a work-related bruise on his knee wastold by a physician not to return to work until undergoing an MRI, and that the employee was offwork for some days before the procedure could be performed. You recorded the case based on thedays away from work, and ask whether the entry may now be lined out because the MRI showedthat no OSHA recordable injury occurred.The case was properly recorded based on the physician’s recommendation that the employee notreturn to work before undergoing an MRI for his bruised knee. Paragraph 1904.7(b)(3) containsthe requirements for recording work-related injuries and illnesses that result in days away fromwork and for counting the total number of days away associated with a given case. In addition,paragraphs 1904.7(b)(3)(ii) and (iii) direct employers how to record days away cases when a physicianor other licensed health care professional (HCP) recommends that the injured or ill workerstay at home or that he or she return to work but the employee chooses not to do so. As theseparagraphs make clear, OSHA requires employers to follow the physician’s or HCP’s recommendationwhen recording a case. For purposes of OSHA recordkeeping, the case met the criteria in section1904.7 at the time of recording because the employee had sustained a work-related injury--abruised knee--involving one or more days away from work. The subsequent MRI results do notchange these facts. Accordingly, the MRI results are not a basis to line out the entry.§1904.7Thank you for your interest in occupational safety and health. We hope you find this informationhelpful. OSHA requirements are set by statute, standards and regulations. Our interpretation lettersexplain these requirements and how they apply to particular circumstances, but they cannotcreate additional employer obligations. This letter constitutes OSHA’s interpretation of the requirementsdiscussed. Note that our enforcement guidance may be affected by changes to OSHA rules.Also, from time to time we update our guidance in response to new information. To keepappraised of such developments, you can consult OSHA’s website at http://www.osha.gov. If youhave any further questions, please contact the Division of Recordkeeping Requirements at 202-693-1702.Sincerely,John L. HenshawAssistant Secretary76OSHA RECORDKEEPINGHANDBOOK

Letter of interpretation related to section 1904.7(b)(5)(ii)(D) –Use of liquid bandages on wounds is considered first aid.August 8, 2002Mr. Carl O. Sall, CIHDirector of Occupational Safety and Health ComplianceComprehensive Health Services Incorporated8229 Boone Boulevard, Suite 700Vienna, Virginia 22182-2623Dear Mr. Sall:This is in response to your letter dated August 8, 2002. Thank you for your comments pertainingto the Occupational Safety and Health Administration’s (OSHA) Injury and Illness Recording andReporting requirements contained in 29 CFR Part 1904.Specifically, you ask OSHA to clarify whether an injury and illness case which resulted in treatmentwith Band-Aid Brand Liquid Bandage would be considered first aid or medical treatment.The concept that underlies the medical treatment vs. first aid distinction made between this type oftreatment centers around the basic difference between wound closures and wound coverings. Therecordkeeping rule defines first aid under section 1904.7(b)(5)(ii)(D), Using wound coverings, suchas bandages, Band-Aids, gauze pads, etc.; or using butterfly bandages or Steri-strips (otherwound closing devices, such as sutures, staples, etc. are considered medical treatment). Therefore,the use of wound coverings, like Band-Aid Brand Liquid Bandage is deemed to be first aid treatment.I hope that you find this information useful. Thank you for your interest in occupational safetyand health and OSHA. If you have any further questions, please contact the Division ofRecordkeeping Requirements, at 202-693-1702Sincerely,John L. HenshawAssistant Secretary§1904.7OSHA RECORDKEEPINGHANDBOOK77

Letter of interpretation related to section 1904.7(b)(5)(ii)(A) –Recording of cases in which a health care professional issues a prescription, whether that prescription isfilled or not.October 29, 2001Mr. Danny Dean HarrisLoss Control ManagerMaverick Tube Corp.Post Office Box 248Armorel, Arkansas 72310Dear Mr. Harris:This is in response to your letter dated October 29, 2001. Thank you for your comments pertainingto the Occupational Safety and Health Administration’s (OSHA) injury and illness recordkeepingrequirements contained in 29 CFR Part 1904. Due to the October closing of the Brentwoodpostal facility in Washington, D.C., and the subsequent sanitizing treatment of the mail that washandled by that facility, your correspondence was significantly delayed in reaching us. Pleaseaccept my apology for the delay in our response.OSHA revised its injury and illness recordkeeping requirements under the following rulemakingprocedures. On February 2, 1996, the agency published a notice of proposed rulemaking (NPRM)requesting public comment on the proposed revision to the recordkeeping requirements. OSHAreceived over 450 sets of comments and held six days of public hearings in response to the NPRM.OSHA analyzed all comments received and developed its final rule based upon that analysis. OnJanuary 19, 2001, OSHA published its final rule. Your comments are similar to many commentssubmitted to OSHA as part of the rulemaking process. The following is an excerpt from the finalrule which explains OSHA’s position regarding the points you raise.§1904.7The final rule, 29 CFR Part 1904 Occupational Injury and Illness Recording and ReportingRequirements, Section 1904.7(b)(5)(ii)(A) defines first aid as: Using a nonprescription medicationat nonprescription strength (for medications available in both prescription and non-prescriptionform, a recommendation by a physician or other licensed health care professional to use a non-prescriptionmedication at prescription strength is considered medical treatment for recordkeepingpurposes). OSHA has not included prescription medications, whether given once or over a longerperiod of time, in the list of first aid treatments. The Agency believes that the use of prescriptionmedications is not first aid because prescription medications are powerful substances that can onlybe prescribed by a physician or licensed health care professional. The availability of these substancesis carefully controlled and limited because they must be prescribed and administered by ahighly trained and knowledgeable professional. OSHA maintains its longstanding policy of requiringthe recording of cases in which a health care professional issues a prescription, whether thatprescription is filled or not. Medical treatment includes treatment that is used as well as those thatshould have been used. The patient’s acceptance or refusal of the treatment does not alter the factthat, in the health care professional’s judgement, the case warranted a script for the issuance ofprescription medicine. For these reasons, the new recordkeeping rule continues OSHA’s longstandingpolicy of considering the use of prescription medication as medical treatment, regardless of thereason it is prescribed.I hope that you find this information useful. Thank you for your interest in occupational safetyand health and OSHA. If you have any further questions, please contact the Division ofRecordkeeping Requirements, at 202-693-1702Sincerely,John L. Henshaw78OSHA RECORDKEEPINGHANDBOOK

Section 1904.8Recording criteria for needlestick and sharps injuries(66 FR 6123, Jan. 19, 2001)REGULATION: Section 1904.8Subpart C – Recordkeeping Forms and Recording Criteria (66 FR 6123, Jan. 19, 2001)Note to Subpart C: This Subpart describes the work-related injuries and illnesses that an employer mustenter into the OSHA records and explains the OSHA forms that employers must use to record work-relatedfatalities, injuries, and illnesses.Section 1904.8 Recording criteria for needlestick andsharps injuries (66 FR 6128, Jan. 19, 2001)(a) Basic requirement.You must record all work-related needlestick injuriesand cuts from sharp objects that are contaminatedwith another person’s blood or other potentiallyinfectious material (as defined by 29 CFR 1910.1030).You must enter the case on the OSHA 300 Log as aninjury. To protect the employee’s privacy, you maynot enter the employee’s name on the OSHA 300 Log(see the requirements for privacy cases in paragraphs1904.29(b)(6) through 1904.29(b)(9)).(b) Implementation.(1) What does “other potentially infectious material”mean?The term “other potentially infectious materials” isdefined in the OSHA Bloodborne Pathogens standardat Section 1910.1030(b). These materials include:(i) Human bodily fluids, tissues and organs, and(ii) Other materials infected with the HIV or hepatitisB (HBV) virus such as laboratory cultures or tissuesfrom experimental animals.(2) Does this mean that I must record all cuts, lacerations,punctures, and scratches?No, you need to record cuts, lacerations, punctures,and scratches only if they are work-related andinvolve contamination with another person’s blood orother potentially infectious material. If the cut, laceration,or scratch involves a clean object, or a contaminantother than blood or other potentially infectiousmaterial, you need to record the case only if it meetsone or more of the recording criteria in Section1904.7.(3) If I record an injury and the employee is laterdiagnosed with an infectious bloodborne disease, doI need to update the OSHA 300 Log?Yes, you must update the classification of the caseon the OSHA 300 Log if the case results in death,days away from work, restricted work, or job transfer.You must also update the description to identify theinfectious disease and change the classification of thecase from an injury to an illness.(4) What if one of my employees is splashed orexposed to blood or other potentially infectiousmaterial without being cut or scratched? Do I needto record this incident?You need to record such an incident on the OSHA300 Log as an illness if:(i) It results in the diagnosis of a bloodborne illness,such as HIV, hepatitis B, or hepatitis C; or(ii) It meets one or more of the recording criteriain Section 1904.7.PREAMBLE DISCUSSION: Section 1904.8(66 FR 5998-6003, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).§1904.8Section 1904.8 Additional recording criteria forneedlestick and sharps injuriesSection 1904.8 of the final rule deals with the recordingof a specific class of occupational injuries involvingpunctures, cuts and lacerations caused by needlesor other sharp objects contaminated or reasonablyanticipated to be contaminated with blood orother potentially infectious materials that may lead tobloodborne diseases, such as Acquired ImmunodeficiencySyndrome (AIDS), hepatitis B or hepatitis C.The final rule uses the terms “contaminated,” “otherpotentially infectious material,” and “occupationalOSHA RECORDKEEPINGHANDBOOK79

§1904.8exposure” as these terms are defined in OSHA’sBloodborne Pathogens standard (29 CFR 1910.1030).These injuries are of special concern to healthcareworkers because they use needles and other sharpdevices in the performance of their work duties andare therefore at risk of bloodborne infections causedby exposures involving contaminated needles andother sharps. Although healthcare workers are at particularrisk of bloodborne infection from theseinjuries, other workers may also be at risk of contractingpotentially fatal bloodborne disease. Forexample, a worker in a hospital laundry could bestuck by a contaminated needle left in a patient’s bedding,or a worker in a hazardous waste treatmentfacility could be occupationally exposed to bloodbornepathogens if contaminated waste from a medicalfacility was not treated before being sent towaste treatment.Section 1904.8(a) requires employers to record onthe OSHA Log all work-related needlestick andsharps injuries involving objects contaminated (orreasonably anticipated to be contaminated) withanother person’s blood or other potentially infectiousmaterial (OPIM). The rule prohibits the employerfrom entering the name of the affected employee onthe Log to protect the individual’s privacy; employeesare understandably sensitive about others knowingthat they may have contracted a bloodborne disease.For these cases, and other types of privacy concerncases, the employer simply enters “privacy concerncase” in the space reserved for the employee’s name.The employer then keeps a separate, confidential listof privacy concern cases with the case number fromthe Log and the employee’s name; this list is used bythe employer to keep track of the injury or illness sothat the Log can later be updated, if necessary, and toensure that the information will be available if a governmentrepresentative needs information aboutinjured or ill employees during a workplace inspection(see Section 1904.40). The regulatory text ofSection 1904.8 refers recordkeepers and others toSection 1904.29(b)(6) through Section 1904.29(b)(10)of the rule for more information about how to recordprivacy concern cases of all types, including thoseinvolving needlesticks and sharps injuries. The implementationsection of Section 1904.8(b)(1) defines“other potentially infectious material” as it is definedin OSHA’s Bloodborne Pathogens Standard (29 CFRSection 1910.1030, paragraph (b)). Other potentiallyinfectious materials include (i) human bodily fluids,human tissues and organs, and (ii) other materialsinfected with the HIV or hepatitis B (HBV) virus suchas laboratory cultures or tissues from experimentalanimals. (For a complete list of OPIM, see paragraph(b) of 29 CFR 1910.1030.)Although the final rule requires the recording ofall workplace cut and puncture injuries resulting froman event involving contaminated sharps, it does notrequire the recording of all cuts and punctures. Forexample, a cut made by a knife or other sharp instrumentthat was not contaminated by blood or OPIMwould not generally be recordable, and a lacerationmade by a dirty tin can or greasy tool would alsogenerally not be recordable, providing that the injurydid not result from a contaminated sharp and did notmeet one of the general recording criteria of medicaltreatment, restricted work, etc. Paragraph (b)(2) ofSection 1904.8 contains provisions indicating whichcuts and punctures must be recorded because theyinvolve contaminated sharps and which must berecorded only if they meet the general recording criteria.Paragraph (b)(3) of Section 1904.8 containsrequirements for updating the OSHA 300 Log when aworker experiences a wound caused by a contaminatedneedle or sharp and is later diagnosed as havinga bloodborne illness, such as AIDS, hepatitis B orhepatitis C. The final rule requires the employer toupdate the classification of such a privacy concerncase on the OSHA 300 Log if the outcome of the casechanges, i.e., if it subsequently results in death, daysaway from work, restricted work, or job transfer. Theemployer must also update the case description onthe Log to indicate the name of the bloodborne illnessand to change the classification of the case froman injury (i.e., the needlestick) to an illness (i.e., theillness that resulted from the needlestick). In no casemay the employer enter the employee’s name on theLog itself, whether when initially recording theneedlestick or sharp injury or when subsequentlyupdating the record….The last paragraph (paragraph (c)) of Section1904.8 deals with the recording of cases involvingworkplace contact with blood or other potentiallyinfectious materials that do not involve needlesticksor sharps, such as splashes to the eye, mucous membranes,or non-intact skin. The final recordkeepingrule does not require employers to record these incidentsunless they meet the final rule’s general recordingcriteria (i.e., death, medical treatment, loss ofconsciousness, restricted work or motion, days awayfrom work, diagnosis by an HCP) or the employeesubsequently develops an illness caused by bloodbornepathogens. The final rule thus providesemployers, for the first time, with regulatory languagedelineating how they are to record injuries80OSHA RECORDKEEPINGHANDBOOK

caused by contaminated needles and other sharps,and how they are to treat other exposure incidents(as defined in the Bloodborne Pathogens standard)involving blood or OPIM. “ Contaminated” is definedjust as it is in the Bloodborne Pathogens standard:“Contaminated means the presence or the reasonablyanticipated presence of blood or other potentiallyinfectious materials on an item or surface.” …After a review of the many comments in therecord on this issue, OSHA has decided to requirethe recording of all workplace injuries from needlesticksand sharp objects that are contaminated withanother person’s blood or other potentially infectiousmaterial (OPIM) on the OSHA Log. These cases mustbe recorded, as described above, as privacy concerncases, and the employer must keep a separate list ofthe injured employees’ names to enable governmentpersonnel to track these cases…....OSHA disagrees, believing that Congress mandatedthe recording of all non-minor injuries and illnessesas well as all injuries resulting in medicaltreatment or one of the other general recording criteria.OSHA finds that needlestick and sharps injuriesinvolving blood or other potentially infectious materialsare non-minor injuries, and therefore must berecorded. This conclusion is consistent with theSenate Committee on Appropriations report accompanyingthe fiscal year 1999 Departments of Labor,Health and Human Services, and Education andRelated Agencies Appropriation Bill, 1999 (S. 2440)which included the following language:Accidental injuries from contaminated needles andother sharps jeopardize the well-being of ourNation’s health care workers and result in preventabletransmission of devastating bloodborne illnesses,including HIV, hepatitis B, and hepatitis C. The committeeis concerned that the OSHA 200 Log does notaccurately reflect the occurrence of these injuries.The committee understands that the reporting andrecordkeeping standard (29 CFR 1904) requires therecording on the OSHA 200 Log of injuries frompotentially contaminated needles and other sharpsthat result in: the recommendation or administrationof medical treatment beyond first aid; death, restrictionof work or motion; loss of consciousness, transferto another job, or seroconversion in the worker.Accidental injuries with potentially contaminatedneedles or other sharps require treatment beyondfirst aid. Therefore, the Committee urges OSHA torequire the recording on the OSHA 200 log ofinjuries from needles and other sharps potentiallycontaminated with bloodborne pathogens (SenateReport 105-300).OSHA finds that these injuries are significant injuriesbecause of the risk of seroconversion, disease, anddeath they pose (see the preamble to the OSHABloodborne Pathogens Standard at 56 FR 64004)….OSHA disagrees with those commenters whoargued that the Section 1904.8 recording requirementwould be duplicative or redundant with the requirementsin the Bloodborne Pathogens standard (29CFR 1910.1030). That standard requires the employerto document the route(s) of exposure and the circumstancesunder which the exposure incident occurred,but does not require that it be recorded on the Log(instead, the standard requires only that such documentationbe maintained with an employee’s medicalrecords). The standard also has no provisionsrequiring an employer to aggregate such informationso that it can be analyzed and used to correct hazardousconditions before they result in additionalexposures and/or infections. The same is true forother medical records kept by employers: they donot substitute for the OSHA Log or meet the purposesof the Log, even though they may contain informationabout a case that is also recorded on the Log.OSHA is requiring only that lacerations and puncturewounds that involve contact with another person’sblood or other potentially infectious materialsbe recorded on the Log. Exposure incidents involvingexposure of the eyes, mouth, other mucous membranesor non-intact skin to another person’s bloodor OPIM need not be recorded unless they meet oneor more of the general recording criteria, result in apositive blood test (seroconversion), or result in thediagnosis of a significant illness by a health care professional.Otherwise, these exposure incidents areconsidered only to involve exposure and not to constitutean injury or illness. In contrast, a needlesticklaceration or puncture wound is clearly an injury and,if it involves exposure to human blood or otherpotentially infectious materials, it rises to the level ofseriousness that requires recording. For splashes andother exposure incidents, the case does not rise tothis level any more than a chemical exposure does. Ifan employee who has been exposed via a splash inthe eye from the blood or OPIM of a person with abloodborne disease actually contracts an illness, orseroconverts, the case would be recorded (providedthat it meets one or more of the general recordingcriteria).Privacy Issues…The final recordkeeping rule addresses this issueby prohibiting the entry of the employee’s name onthe OSHA 300 Log for injury and illness cases involv-§1904.8OSHA RECORDKEEPINGHANDBOOK81

ing blood and other potentially infectious material.Further, by requiring employers to record all needlestickand sharps incidents, regardless of the seroconversionstatus of the employee, coworkers and representativeswho have access to the Log will be unableto ascertain the disease status of the injured worker….OSHA believes that hepatitis C cases should, likeother illness cases, be tested for recordability usingthe geographic presumption that provides the principalrationale for determining work-relatednessthroughout this rule….PART 1910.1030 — OSHA Bloodborne PathogensStandard.Section 1910.1030(h)(5) Sharps injury log.Section 1910.1030(h)(5)(i) The employer shall establishand maintain a sharps injury log for the recordingof percutaneous injuries from contaminatedsharps. The information in the sharps injury log shallbe recorded and maintained in such manner as toprotect the confidentiality of the injured employee.The sharps injury log shall contain, at a minimum:(A) The type and brand of device involved in theincident,(B) The department or work area where the exposureincident occurred, and(C) An explanation of how the incident occurred.Section 1910.1030(h)(5)(ii) The requirement to establishand maintain a sharps injury log shall apply toany employer who is required to maintain a log ofoccupational injuries and illnesses under 29 CFR1904.FREQUENTLY ASKED QUESTIONS: Section 1904.8 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.8 Recording criteria for needlesticks and sharps injuriesQuestion 8-1. Can you clarify the relationship betweenthe OSHA recordkeeping requirements andthe requirements in the Bloodborne Pathogens standardto maintain a sharps injury log?The OSHA Bloodborne Pathogens Standard states:“The requirement to establish and maintain a sharpsinjury log shall apply to any employer who isrequired to maintain a log of occupational injuriesand illnesses under 29 CFR 1904.” Therefore, if anemployer is exempted from the OSHA recordkeepingrule, the employer does not have to maintain asharps log. For example, dentists’ offices and doctors’offices are not required to keep a sharps logafter January 1, 2002.Question 8-2. Can I use the OSHA 300 Log to meetthe Bloodborne Pathogen Standard’s requirement fora sharps injury log?Yes. You may use the 300 Log to meet the requirementsof the sharps injury log provided you enter thetype and brand of the device causing the sharpsinjury on the Log and you maintain your records in away that segregates sharps injuries from other typesof work-related injuries and illnesses, or allowssharps injuries to be easily separated.LETTERS OF INTERPRETATION: Section 1904.8Section 1904.8 Recording criteria for needlesticks and sharps injuriesThis section will be developed as letters of interpretation become available.§1904.882OSHA RECORDKEEPINGHANDBOOK

Section 1904.9Recording criteria for cases involving medical removalunder OSHA standards(66 FR 6129, Jan. 19, 2001)REGULATION: Section 1904.9Subpart C – Recordkeeping forms and recording criteria(66 FR 6123, Jan. 19, 2001)Note to Subpart C: This Subpart describes the work-related injuries and illnesses that an employer mustenter into the OSHA records and explains the OSHA forms that employers must use to record work-relatedSection 1904.9 Recording criteria for cases involvingmedical removal under OSHA standards(a) Basic requirement.If an employee is medically removed under themedical surveillance requirements of an OSHA standard,you must record the case on the OSHA 300 Log.(b) Implementation.(1) How do I classify medical removal cases onthe OSHA 300 Log?You must enter each medical removal case on theOSHA 300 Log as either a case involving days awayfrom work or a case involving restricted work activity,depending on how you decide to comply with themedical removal requirement. If the medicalremoval is the result of a chemical exposure, youmust enter the case on the OSHA 300 Log by checkingthe “poisoning” column.(2) Do all of OSHA’s standards have medicalremoval provisions?No, some OSHA standards, such as the standardscovering bloodborne pathogens and noise, do nothave medical removal provisions. Many OSHA standardsthat cover specific chemical substances havemedical removal provisions. These standards include,but are not limited to, lead, cadmium, methylenechloride, formaldehyde, and benzene.(3) Do I have to record a case where I voluntarilyremoved the employee from exposure before themedical removal criteria in an OSHA standard aremet?No, if the case involves voluntary medical removalbefore the medical removal levels required by anOSHA standard, you do not need to record the caseon the OSHA 300 Log.PREAMBLE DISCUSSION: Section 1904.9(66 FR 6003, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.9 Additional recording criteria for casesinvolving medical removal under OSHA standards.The final rule, in paragraph 1904.9(a), requires anemployer to record an injury or illness case on theOSHA 300 Log when the employee is medicallyremoved under the medical surveillance requirementsof any OSHA standard. Paragraph 1904.9(b)(1)requires each such case to be recorded as a caseinvolving days away from work (if the employeedoes not work during the medical removal) or as acase involving restricted work activity (if the employeecontinues to work but in an area where exposuresare not present.) This paragraph also requires anymedical removal related to chemical exposure to berecorded as a poisoning illness.Paragraph 1904.9(b)(2) informs employers thatsome OSHA standards have medical removal provisionsand others do not. For example, the BloodbornePathogen Standard (29 CFR 1910.1030) and theOccupational Noise Standard (29 CFR 1910.95) do notrequire medical removal. Many of the OSHA standardsthat contain medical removal provisions arerelated to specific chemical substances, such as lead(29 CFR 1901.1025), cadmium (29 CFR 1910.1027),methylene chloride (29 CFR 1910.1052), formaldehyde(29 CFR 1910.1048), and benzene (29 CFR 1910.1028).Paragraph 1904.9(b)(3) addresses the issue ofmedical removals that are not required by an OSHA§1904.9OSHA RECORDKEEPINGHANDBOOK83

standard. In some cases employers voluntarily rotateemployees from one job to another to reduce exposureto hazardous substances; job rotation is anadministrative method of reducing exposure that ispermitted in some OSHA standards. Removal (jobtransfer) of an asymptomatic employee for administrativeexposure control reasons does not require thecase to be recorded on the OSHA 300 Log becauseno injury or illness -- the first step in the recordkeepingprocess -- exists. Paragraph 1904.9(b)(3) onlyapplies to those substances with OSHA mandatedmedical removal criteria. For injuries or illnessescaused by exposure to other substances or hazards,the employer must look to the general requirementsof paragraphs 1910.7(b)(3) and (4) to determine howto record the days away or days of restricted work.The provisions of Section 1904.9 are not the onlyrecording criteria for recording injuries and illnessesfrom these occupational exposures. These provisionsmerely clarify the need to record specific cases, whichare often established with medical test results, thatresult in days away from work, restricted work, or jobtransfer. The Section 1904.9 provisions are included toproduce more consistent data and provide neededinterpretation of the requirements for employers.However, if an injury or illness results in the other criteriaof Section 1904.7 (death, medical treatment, lossof consciousness, days away from work, restrictedwork, transfer to another job, or diagnosis as a significantillness or injury by a physician or other licensedhealth care professional) the case must be recordedwhether or not the medical removal provisions of anOSHA standard have been met….…The medical removal provisions of each standardwere set using scientific evidence established inthe record devoted to that rulemaking. OSHA takescare when setting the medical removal provisions ofstandards to ensure that these provision reflect amaterial harm, i.e., the existence of an abnormal conditionthat is non-minor and thus worthy of entry inthe OSHA injury and illness records….While these commenters are correct in noting thatthe OSH Act does not specifically address medicalremoval levels and whether or not cases meetingthese levels should be recorded, the Act also doesnot exclude them. The Act does require the recordingof injuries and illnesses that result in “restriction ofwork or motion” or “transfer to another job.” OSHAfinds that cases involving a mandatory medicalremoval are cases that involve serious, significant,disabling illnesses resulting in restriction of work andtransfer to another job, or both. These medicalrestrictions result either in days away from work ordays when the worker can work but is restricted fromperforming his or her customary duties….As stated previously, a “diagnosis of substantialimpairment of a bodily function” is not required for acase to meet OSHA recordkeeping criteria, nor is it alimitation to recordability under the OSH Act. Manyinjuries and illnesses meet the recording criteria ofthe Act but lack diagnosis of a substantial impairmentof a bodily function. Although the medical removalprovisions are included in OSHA’s standards toencourage participation in the medical program byemployees and to prevent progression to serious andperhaps irreversible illness, they also reflect illnessescaused by exposures in the workplace and are thusthemselves recordable. The workers are beingremoved not only to prevent illness, but to preventfurther damage beyond what has already been done.Thus OSHA does not agree that medical removalmeasures are purely preventive in nature; instead,they are also remedial measures taken when specificbiological test results indicate that a worker has beenmade ill by workplace exposures.OSHA has therefore included section 1904.9 in thefinal rule to provide a uniform, simple method forrecording a variety of serious disorders that havebeen addressed by OSHA standards. The Section1904.9 provisions of the final rule cover all of theOSHA standards with medical removal provisions,regardless of whether or not those provisions arebased on medical tests, physicians’ opinions, or acombination of the two. Finally, by relying on themedical removal provisions in any OSHA standard,section 1904.9 of the final rule establishes recordingcriteria for future standards, and avoids the need toamend the recordkeeping rule whenever OSHAissues a standard containing a medical removal level.§1904.9FREQUENTLY ASKED QUESTIONS: Section 1904.9 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.9 Recording criteria for cases involving medical removal under OSHA standardsThis section will be developed as letters of interpretation become available.LETTERS OF INTERPRETATION: Section 1904.9Section 1904.9 Recording criteria for cases involving medical removal under OSHA standardsThis section will be developed as letters of interpretation become available.84OSHA RECORDKEEPINGHANDBOOK

Section 1904.10Recording criteria for cases involvingoccupational hearing loss(66 FR 6129, Jan. 19, 2001)REGULATION: Section 1904.10Subpart C – Recordkeeping forms and recording criteria(66 FR 6123, Jan. 19, 2001)Note to Subpart C: This Subpart describes the work-related injuries and illnesses that an employer mustenter into the OSHA records and explains the OSHA forms that employers must use to record work-relatedfatalities, injuries, and illnesses.Part 1904 – [AMENDED]Section 1904.10 Recording criteria for cases involvingoccupational hearing loss (67 FR 44047, July 1, 2002)(a) Basic requirement.If an employee’s hearing test (audiogram) revealsthat the employee has experienced a work-relatedStandard Threshold Shift (STS) in hearing in one orboth ears, and the employee’s total hearing level is 25decibels (dB) or more above audiometric zero (averagedat 2000, 3000, and 4000 Hz) in the same ear(s) as theSTS, you must record the case on the OSHA 300 Log.(b) Implementation.(1) What is a Standard Threshold Shift?A Standard Threshold Shift, or STS, is defined inthe occupational noise exposure standard at 29 CFR1910.95(g)(10)(i) as a change in hearing threshold, relativeto the baseline audiogram for that employee, ofan average of 10 decibels (dB) or more at 2000, 3000,and 4000 hertz (Hz) in one or both ears.(2) How do I evaluate the current audiogram todetermine whether an employee has an STS and a25-dB hearing level?(i) STS. If the employee has never previouslyexperienced a recordable hearing loss, you mustcompare the employee’s current audiogram withthat employee’s baseline audiogram. If theemployee has previously experienced a recordablehearing loss, you must compare the employee’scurrent audiogram with the employee’srevised baseline audiogram (the audiogramreflecting the employee’s previous recordablehearing loss case).(ii) 25-dB loss. Audiometric test results reflect the employee’soverall hearing ability in comparison to audiometriczero. Therefore, using the employee’s currentaudiogram, you must use the average hearing level at2000, 3000, and 4000 Hz to determine whether or notthe employee’s total hearing level is 25 dB or more.OSHA RECORDKEEPING(3) May I adjust the current audiogram to reflectthe effects of aging on hearing?Yes. When you are determining whether an STShas occurred, you may age adjust the employee’scurrent audiogram results by using Tables F-1 or F-2,as appropriate, in Appendix F of 29 CFR 1910.95. Youmay not use an age adjustment when determiningwhether the employee’s total hearing level is 25 dBor more above audiometric zero.(4) Do I have to record the hearing loss if I amgoing to retest the employee’s hearing?No, if you retest the employee’s hearing within 30days of the first test, and the retest does not confirmthe recordable STS, you are not required to record thehearing loss case on the OSHA 300 Log. If the retestconfirms the recordable STS, you must record thehearing loss illness within seven (7) calendar days ofthe retest. If subsequent audiometric testing performedunder the testing requirements of the § 1910.95 noisestandard indicates that an STS is not persistent, youmay erase or line-out the recorded entry.(5) Are there any special rules for determiningwhether a hearing loss case is work-related?No. You must use the rules in § 1904.5 to determineif the hearing loss is work-related. If an event orexposure in the work environment either caused orcontributed to the hearing loss, or significantlyaggravated a pre-existing hearing loss, you mustconsider the case to be work related.(6) If a physician or other licensed health careprofessional determines the hearing loss is not workrelated,do I still need to record the case?If a physician or other licensed health care professionaldetermines that the hearing loss is not workrelatedor has not been significantly aggravated byoccupational noise exposure, you are not required toconsider the case work-related or to record the caseon the OSHA 300 Log.HANDBOOK85§1904.10

PART 1904—[AMENDED] (67 FR 77170, Dec. 17,2002)(7) How do I complete the 300 Log for a hearingloss case?When you enter a recordable hearing loss case onthe OSHA 300 Log, you must check the 300 Log columnfor hearing loss. (Note: § 1904.10(b)(7) is effectivebeginning January 1, 2004.)PREAMBLE DISCUSSION: Section 1904.10(66 FR 6004-6012, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).§1904.1086Section 1904.10 Recording criteria for cases involvingoccupational hearing lossThe recording criteria employers should use torecord occupational hearing loss on the OSHArecordkeeping forms have been an issue since OSHAfirst proposed to require hearing conservation programsfor general industry employers (39 FR 37775,October 24, 1974). Job-related hearing loss is a significantoccupational safety and health issue becausemillions of workers are employed in noisy workplacesand thousands of workers experience noiseinducedhearing loss each year. Noise-induced hearingloss is a serious and irreversible condition thatmay affect the safety and well-being of workers forthe rest of their lives….The changes being made to the OSHA 300 form inthe final rule will improve the quality of the data collectednationally on this important occupational conditionby providing consistent hearing loss recordingcriteria, thus improving the consistency of the hearingloss statistics generated by the BLS occupationalinjury and illness collection program. National hearingloss statistics will also be improved becauseOSHA has added a column to the OSHA 300 Log thatwill require employers, for the first time, to separatelycollect and summarize data specific to occupationalhearing loss. These changes mean that the BLSwill collect hearing loss data in future years, both forcases with and without days away from work, whichwill allow for more reliable published statistics concerningthis widespread occupational disorder….If the employee is not covered by the 29 CFR1910.95 noise standard, OSHA rules do not requirethe employer to administer baseline or periodicaudiograms, and the 1904 rule does not impose anynew requirements for employers to obtain baselineinformation where it is not already required. However,some employers conduct such tests andacquire such information for other reasons. If theemployer’s workplace is a high noise environment(i.e., has noise levels that exceed 85 dBA) and theOSHA RECORDKEEPINGemployer has the relevant audiogram information foran employee, the employer must record any identifiedwork-related hearing loss .... This means that anemployer in the construction industry, for example,who is aware that his or her work activities regularlygenerate high noise levels and who has audiometricdata on the hearing level of the employees exposedto those noise levels must record on the Log any[recordable hearing loss] detected in those workers.OSHA believes that this approach to the recording ofwork-related hearing loss cases among these workersnot covered by the noise standard is appropriatebecause it is reasonable, protective, and administrativelystraightforward….Paragraphs 1904.10(b)(3) and (4) of the final ruleallow the employer to take into account the hearingloss that occurs as a result of the aging process andto retest an employee who has an STS on an audiogramto ensure that the STS is permanent beforerecording it. The employer may correct the employee’saudiogram results for aging, using the samemethods allowed by the OSHA Noise standard (29CFR 1910.95). Appendix F of Section 1910.95 providesage correction for presbycusis (age-induced hearingloss) in Tables F-1 (for males) and F-2 (for females).Further, as permitted by the Noise standard, theemployer may obtain a second audiogram foremployees whose first audiogram registers an STS ifthe second audiogram is taken within 30 days of thefirst audiogram. The employer may delay recordingof the hearing loss case until the STS is confirmed bythe second audiogram and is, or course, not requiredto record the case if the second audiogram revealsthat the STS was not permanent….Paragraph 1904.10(b)(6) allows the employer notto record a hearing loss case if physician or otherlicensed health care professional determines that thehearing loss is not work-related or has not beenaggravated by occupational noise exposure. Thisprovision is consistent with the Occupational Noisestandard, and it allows the employer not to record aHANDBOOK

hearing loss case that is not related to workplaceevents or exposures; examples of such cases arehearing loss cases occurring before the employee ishired or those unrelated to workplace noise.The recordkeeping provisions in section 1904.10of the final recordkeeping rule thus match the provisionsof the Occupational Noise standard by (1) coveringthe same employers and employees (with theexception of cases occurring among employees notcovered by that standard whose employers haveaudiometric test results and high-noise workplaces);(2) using the same measurements of workplacenoise; (3) using a common definition of hearing loss,i.e., the STS; (4) using the same hearing loss measurementmethods; (5) using the same definitions ofbaseline audiogram and revised baseline audiogram;(6) using the same method to account for age correctionin audiogram results; and (7) allowing certaintemporary threshold shifts to be set aside if a subsequentaudiogram demonstrates that they are not permanentor a physician or other licensed health careprofessional finds they are not related to workplacenoise exposure….As is the case for many OSHA rules, the 1981Noise standard was challenged in the courts, whichstayed several provisions. In 1983, OSHA revised thehearing conservation amendment to revoke many ofthe provisions stayed by the court, lift an administrativestay implemented by OSHA, and make technicalcorrections (48 FR 9738). One of those provisionsinvolved the definition of STS, which was renamed a“standard” rather than “significant” threshold shift tohelp differentiate the two separate methods used tocalculate the STS in the 1981 and 1983 rules. AlthoughOSHA changed the calculation method usedto establish an STS in 1983, the role and importanceof the STS concept in the context of a hearing conservationprogram was unchanged. The main reasonfor changing the definition of STS in the 1983 standardwas to simplify the original calculation andaddress the concerns of employers and audiologyprofessionals who wished to avoid using a computerto calculate an STS. The standard requires employersto take follow-up actions when an STS is identified,notify the affected employee, evaluate and refit hearingprotectors, retrain the employee, and, if necessary,refer the employee for medical evaluation….…In the 1981 preamble to the Hearing ConservationAmendment, OSHA found that a 10 dB shift inhearing threshold is significant because it is outsidethe range of audiometric error and “it is seriousenough to warrant prompt attention” (46 FR 4144).The 1983 preamble reinforces these findings. It statesthat:OSHA RECORDKEEPINGCorrectly identifying standard threshold shifts willenable employers and employees to take correctiveaction so that the progression of hearing loss may bestopped before it becomes handicapping. Moreover, astandardized definition of STS will ensure that the protectionafforded to exposed employees is uniform inregard to follow-up procedures. * * *OSHA reaffirms its position on the ideal criterion forSTS which was articulated in the January 16, 1981promulgation (see 46 FR 4144). The criterion must besensitive enough to identify meaningful changes inhearing level so that follow-up procedures can be implementedto prevent further deterioration of hearing butmust not be so sensitive as to pick up spurious shifts(sometimes referred to as “false positives”). In otherwords, the criterion selected must be outside the rangeof audiometric error (48 FR 9760).The Fourth Circuit rejected an employer’s argumentthat a 10 dB shift in hearing threshold isinsignificant. In its decision upholding OSHA’s use ofa 10 dB STS as an action level in the HearingConservation Amendment, the court found that:[T]he amendment is concerned with protecting workersbefore they sustain an irreversible shift. Consequently, itwas incumbent upon the Agency to select a trigger levelthat would protect workers by providing an early warningyet not to be so low as to be insignificant or within therange of audiometric error. We find that the Agency strucka reasonable balance between those concerns. * * *Forging Indus. Ass’n v. Secretary of Labor, 773 F.2d1436, 1450 (1985)(en banc).OSHA believes that many of the reasons stated inthe 1983 preamble make the STS an appropriaterecording criterion for recordkeeping purposes. Forexample, employers are familiar with the STS definition,which is also sensitive enough to identify a nonminorchange in hearing. Use of the STS alsoreduces the confusion that would arise were OSHAto require employers to maintain two baselines: onerequired by the Occupational Noise standard and onerequired for recordkeeping purposes….OSHA recognizes that using the correction forpresbycusis when interpreting audiogram results iscontroversial among experts in the field of audiologyand that NIOSH has developed a new criteria documenton occupational noise exposure (“Criteria for aRecommended Standard; Occupational NoiseExposure, Revised Criteria, 1998; U.S. Department ofHealth and Human Services, Centers for DiseaseControl and Prevention, National Institute forOccupational Safety and Health; June 1998) which atpresent does not recommend applying presbycusisHANDBOOK87§1904.10

§1904.1088OSHA RECORDKEEPINGcorrection values to actual employee audiometricdata. However, since the Occupational Noise standarditself permits employers to adjust the interpretationof audiograms for the effects of aging, it wouldbe inconsistent and administratively complex to prohibitthis practice in the recordkeeping rule. Accordingly,Section 1904.10(b)(3) allows the employer toadjust for aging when determining the recordabilityof hearing loss. The adjustment is made using TablesF-1 or F-2, as appropriate (table F-1 applies to menand F-2 applies to women), in Appendix F of 29 CFR1910.95. However, use of the correction for aging isnot mandatory, just as it is not mandatory in theNoise standard itself…....[I]n the final rule, at paragraph 1904.10(b)(4),employers are permitted, if they choose, to retest theemployee to confirm or disprove that an STS reflectedon the first audiogram was attributable to a coldor some other extraneous factor and was not persistent.If the employer elects to retest, the employerneed not record the case until the retest is completed.If the retest confirms the hearing loss results, thecase must be recorded within 7 calendar days. If theretest refutes the original test, the case is not recordable,and the employer does not have to take furtheraction for OSHA recordkeeping purposes. The 30 daylimit in the final recordkeeping rule is consistent withthe 30 day retest provision of Section 1910.95(g)(5)(ii),which allows the employer to obtain a retest within30 days and consider the results of the retest as theannual audiogram if the STS recorded on the firsttest is determined not to persist.OSHA believes that the 30 day retest optionallows the employer to exclude false positive resultsand temporary threshold shifts from the data whileensuring the timely and appropriate recording of truepositive results. Adding language to the final recordkeepingrule to specify different procedures, dependingon whether the employer chooses to conduct are-test within 30 days, adds some complexity to thefinal rule, but OSHA finds that this added complexityis appropriate because it will reduce burden for someemployers and improve the accuracy of the hearingloss data…....For workers who are exposed to the noise levelsthat require medical surveillance under Section1910.95 (an 8-hour time-weighted average of 85dB(A) or greater, or a total noise dose of 50 percent),it is highly likely that workplace noise is the cause ofor, at a minimum, has contributed to the observedSTS. It is not necessary for the workplace to be thesole cause, or even the predominant cause, of thehearing loss in order for it to be work-related. Becausethe final recordkeeping rule relies upon thecoverage of the Occupational Noise standard, it isalso not necessary for OSHA to include a minimumtime of exposure provision. The Occupational Noisestandard does not require a baseline audiogram tobe taken for up to six months after the employee isfirst exposed to noise in the workplace, and the nextannual audiogram would not be taken until a yearafter that.For any worker to have an applicable change inaudiogram results under the Occupational Noisestandard, the worker would have been exposed tolevels of noise exceeding 85 dB(A) for at least a year,and possibly even for 18 months.In addition, the provisions allowing for review by aphysician or other licensed health care professionalallow for the exclusion of hearing loss cases that arenot caused by noise exposure, such as off the job traumaticinjury to the ear, infections, and the like. OSHAnotes that this presumption is consistent with a similarpresumption in OSHA’s Occupational Noise standard(in both cases, an employer is permitted to rebut thispresumption if he or she suspects that the hearingloss shown on an employer’s audiogram in fact has amedical etiology and this is confirmed by a physicianor other licensed health care professional)….Shifts in hearing must be calculated separately foreach ear, in accordance with the requirements ofSection 1910.95. However, if a single audiogramreflects a loss of hearing in both ears, only one hearingloss case must be entered into the records. Theissue of revising baseline audiograms to evaluate theextent of future hearing loss pertains to a hearingloss case that has been entered on the Log. If a single-earSTS loss has been recorded on the Log, thenthe baseline audiogram should be adjusted for thatear, and that ear only. If an STS affecting both earshas been recorded on the Log, then the baselineaudiogram may be revised and applied to both ears.This means that there should be no cases where thebaseline audiogram has been adjusted and the casehas not been recorded on the Log.[67 FR 44038, July 1, 2002]II. Recording Occupational Hearing Loss CasesSection 1904.10 of the January 19, 2001 final recordkeepingrule required employers to record, by checkingthe “hearing loss” column on the OSHA 300 Log,all cases in which an employee’s hearing test (audiogram)revealed that a Standard Threshold Shift (STS)in hearing acuity had occurred. An STS was definedas “a change in hearing threshold, relative to themost recent audiogram for that employee, of anHANDBOOK

average of 10 decibels or more at 2000, 3000 and4000 Hertz (Hz) in one or both ears.” The recordkeepingrule itself does not require the employer to testemployee’s hearing. However, OSHA’s occupationalnoise standard (29 CFR 1910.95) requires employersin general industry to conduct periodic audiometrictesting of employees when employees’ noise exposuresare equal to, or exceed, an 8-hour time-weightedaverage of 85dBA. Under the provisions ofSection 1910.95, if such testing reveals that anemployee has sustained a hearing loss equal to anSTS, the employer must take protective measures,including requiring the use of hearing protectors, toprevent further hearing loss. Employers in the construction,agriculture, oil and gas drilling and servicing,and shipbuilding industries are not covered bySection 1910.95, and therefore are not required byOSHA to provide hearing tests. If employers in theseindustries voluntarily conduct hearing tests they arerequired to record hearing loss cases meeting therecording criteria set forth in the final Section 1904.10rule.[67 FR 77169, Dec.17, 2002]D. Other Hearing Loss IssuesOSHA would like to clarify three matters in relation torecording occupational hearing loss in conjunctionwith the Section 1904.10 final rule issued July 1,2002. First, the preamble to the final rule stated thatemployers in the shipbuilding industries are not coveredby OSHA’s noise standard Section 1910.95 andare therefore not required to perform audiometrictests. (67 FR 44038, 44040). This statement was anerror. OSHA Directive STD 0.2 Identification ofGeneral Industry Safety and Health Standards (29CFR 1910) Applicable to Shipyard Work specificallystates that employers in the shipbuilding industrythat are covered by the 29 CFR part 1915 Standardsare required to comply with a number of 29 CFR Part1910 standards, including the Section 1910.95 requirementsfor occupational noise.[67 FR 44038-44044, July 1, 2002]II. Recording Occupational Hearing Loss Cases(continued)One of the major issues in the recordkeeping rulemakingwas to determine the level of occupationalhearing loss that constitutes a health condition seri -ous enough to warrant recording. This was necessarybecause the final rule no longer requires recording ofminor or insignificant health conditions that do notresult in one or more of the general recording criteriasuch as medical treatment, restricted work, or daysOSHA RECORDKEEPINGaway from work (See, e.g., 66 FR 5931). In its 1996Federal Register notice OSHA proposed a requirementto record hearing loss averaging 15 dB at 2000,3000 and 4000 Hz in one or both ears (61 FR 4040).OSHA adopted the lower 10-dB threshold in the finalrule based in part upon comments that “(a)n age-correctedSTS is a large hearing change that can affectcommunicative competence” (66 FR 6008).OSHA’s DecisionFollowing consideration of the comments received inresponse to the July 3, 2001 proposal to modify thehearing loss recording criteria, OSHA has decided torequire employers to record audiometric results indicatinga Standard Threshold Shift (STS) only whensuch STS cases also reflect a total hearing level of atleast 25 dB from audiometric zero. The STS calculationuses audiometric results averaged over the frequencies2000, 3000 and 4000 Hz, using the originalbaseline and annual audiograms required by theOSHA noise standard Section 1910.95. The rule alsoallows the employer to adjust the employee’s audiogramresults used to determine an STS to subtracthearing loss caused by aging, allows the employer toretest the workers’ hearing to make sure the hearingloss is persistent, and allows the employer to seekand follow the advice of a physician or licensedhealth care professional in determining whether ornot the hearing loss was work-related.The approach adopted in the final rule has severaladvantages. By using the STS definition from theOSHA noise standard Section 1910.95, the Section1904.10 regulation uses a sensitive measure of hearingloss that has occurred while the employee isemployed by his or her current employer. By requiringall STSs to exceed 25 dB from audiometric zero,the regulation assures that all recorded hearing lossesare significant illnesses. OSHA received no commentssuggesting that a shift of 25 dB from audiometriczero was anything less than a serious hearingloss case. While there is little consensus among thecommenters concerning the appropriate level thatshould be used to record hearing loss cases, there iswidespread agreement that a 25-dB shift from audiometriczero is a serious hearing loss.The hearing loss recording level is also compatiblewith the final rule’s definition of injury or illness,“an abnormal condition or disorder” (Section1904.46). Various scales used to rate hearing lossconsider hearing levels less than 25 dB to be withinthe “normal range” (American Medical AssociationGuidelines to the evaluation of Material Impairment,American Academy of Family Physicians, AudiologyHANDBOOK89§1904.10

§1904.1090OSHA RECORDKEEPINGAwareness Campaign). The recording level is alsocompatible with the definition of material impairmentused by OSHA and MSHA in the development ofstandards for occupational noise exposure (64 FR49548, 48 FR 9738).The hearing loss recording requirements inSection 1904.10 differ from the requirements of theOSHA noise standard (Section 1910.95) becauseunder the noise standard the employer is required totake certain actions (employee notification, providinghearing protectors or refitting of hearing protectors,etc.) for all 10-db standard threshold shifts while thepart 1904 rule only requires the recording of STSsthat also exceed the total 25-db level. OSHA believesthat this is an appropriate policy, because 10-db shiftsin hearing at higher levels (above 25 dB) are moresignificant….When audiometric testing is done, test tones arepresented at various sound levels, usually increasingor decreasing in 5-dB steps. The employee is askedto respond whenever a tone is heard, with the goalbeing finding the lowest level at which the employeecan consistently hear. The standard measurement formeasuring hearing level is decibels, a logarithmicscale. For the first increase in hearing level from 0 to10 dB, the sound intensity increases 10 fold. The next10 dB is a 100-fold increase. By the time a person’shearing level changes from 0 to 30 dB hearing level,he or she needs 1,000 times more sound intensity tojust barely hear.Although the part 1904 recordkeeping regulationand the Section 1910.95 noise standard treat the STScases differently, this has no effect on the noise standard’srequirements and does not have any effect onthe requirement for employers to comply withSection 1910.95. When employers detect work-relatedSTS cases, they are required to take all of the follow-upactions required by the noise standard.Additionally, the STS measure uses existingmeasurements and calculations employers arealready using to comply with the OSHA noise standard,resulting in less paperwork burden for employerscovered by both rules. Employers are required totake one additional step to determine if the STS hasalso resulted in a total hearing level of 25 dB ormore, and if so, to record it. The position taken inSection 1904.10 provides a reasonable compromisebetween the commenters’ highly polarized views onthe proper recording level. The final rule’s hearingloss recording provisions provide a reasonable “middleground” solution to reconcile the differencesbetween a highly sensitive measure of hearing loss(all 10-db shifts) and increasingly insensitive measures(15, 20, or 25-db shifts).The approach used in this final rule is a newlydeveloped alternative that was not considered in theJanuary 2001 rulemaking because none of the commentersto the 1996 proposed rule suggested it….OSHA believes that the Section 1904.10 requirementswill improve the nation’s statistics on occupationalhearing loss and that more hearing loss caseswill be entered on employers’ OSHA 300 Logs.However, OSHA recognizes that the new requirementsmay not result in comprehensive statistics foroccupational hearing loss. Employees may experiencesignificant hearing loss in industries whereaudiometric testing is not required (construction,agriculture, oil and gas drilling and servicing, andshipbuilding industries), and is not provided voluntarilyby the employer, and thus never be enteredinto the records. Likewise, an employee may experiencegradual hearing loss while employed by severalemployers, but never work for the same employerlong enough to allow a recordable STS to be captured.As to the effect on trend analysis, caution mustbe used when comparing Section 1904.10 hearingloss data that span the effective date of this rule.The new hearing loss recording rule will result in therecording of additional cases of hearing loss, not as aresult of a change in the number of workers whoexperience hearing loss, but simply because of therecordkeeping change.OSHA finds that recording only 25-dB shifts fromthe employee’s baseline audiogram is not an appropriatepolicy. If an employee had significant hearingloss before being hired by the employer, additionalhearing loss would not be recorded until well beyondthe point of disability. This would not conform to therequirements of section 24 of the Act directing theSecretary to “[c]ompile accurate statistics on workinjuries and illnesses which shall include all disabling,serious, or significant injuries and illnesses * * *”(emphasis added) (29 U.S.C. 673). The recording of25-dB shifts in hearing acuity, measured from theemployee’s original baseline audiogram would clearlyunderstate the true incidence of work-related hearingloss. Likewise, if the part 1904 regulation were torequire only the recording of 15 or 20-dB shifts, orcategorically exclude the first STS case the rulewould exclude many legitimate and serious hearingloss cases that should rightfully be entered into therecords and the Nation’s injury and illness statistics.This approach would be especially deficient at capturinghearing loss in those employees who changeemployers several times during their working lives….OSHA does not agree with the commenters whoHANDBOOK

argued that because the function of the OSHA standardsand regulations, including the part 1904 regulation,is to protect workers, worker protection wouldbe compromised by any policy other than the recordingof all STS cases. OSHA encourages employersand employees to use the OSHA injury and illnessrecords to improve workplace safety and health conditions,and this is one of the functions of the Part1904 records. However, this is not the only functionof the records. They are also used to generate injuryand illness statistics for the Nation and for individualworkplaces. They are used by OSHA representativesto identify hazards during workplace inspections, andare collected by OSHA to target its interventionefforts to more hazardous worksites (See 66 FR 5916-5917). As stated in the 2001 rulemaking, “[n]o newprotections are being provided by the recordkeepingrule”. Further, the OSH Act does not require therecording of all injuries and illnesses and specificallyexcludes certain minor injury and illness cases. Thisexclusion, which is discussed in the preamble to theJanuary 19, 2001 final rule, applies to both injuriesand illnesses, including hearing loss (See 66 FR 5931-5932). It is thus entirely appropriate for the recordkeepingrule to exclude certain minor illness caseswhile capturing more serious cases.The hearing loss recording requirements ofSection 1904.10 will not deprive employers andemployees of information about noise hazards ordiminish workers’ protection against the hazards ofnoise in the workplace. The occupational noise exposurestandard requires that employees in generalindustry be tested for hearing loss when noise exposureexceeds an 8-hour time-weighted average of85dB, and that employees be informed, in writing, ifa 10-dB shift has occurred. The audiometric testrecords must be retained for the duration of theaffected employee’s employment. (See 29 CFR1910.95(g), (m)). The noise standard also specifies theprotective measures to be taken to prevent furtherhearing loss for employees who have experienced a10-dB shift, including the use of hearing protectorsand referral for audiological evaluation where appropriate.(See 29 CFR 1910.95(g)(8)). These requirements,which apply without regard to the recordingcriteria in the recordkeeping rule, will protect workersagainst the hazards of noise. The modified requirementsof Section 1904.10 will therefore not depriveemployers and workers of the means to detect andprevent hearing loss.Finally, section 4(b)(4) of the OSH Act providesthat “[n]othing in this Act shall be construed tosupercede or in any manner affect any workmen’sOSHA RECORDKEEPINGcompensation law or to enlarge or diminish or affectin any other manner the common law or statutoryrights, duties, or liabilities of employers and employeesunder any law with respect to injuries, diseases,or death of employees arising out of, or in the courseof, employment.” 29 U.S.C. 653(b)(4). Accordingly, theOSHA recordkeeping rule will have no legal effect onstate workers’ compensation systems. There is noevidence that the states have modified their systemsto conform to OSHA’s previous hearing loss recordingpolicies; in fact, the states are far from uniform intheir treatment of occupational hearing loss. Therefore,OSHA does not expect the 1904 regulation tohave any effect on state workers’ compensation inthe future.Audiometric Error…OSHA agrees … that the recordkeeping rule shouldnot take any actions to address the issues of audiometricvariability, and finds that there is no need toincrease the recording loss threshold to 15 or 20 dBto account for variability. The OSHA noise standardincludes provisions that standardize audiometric testingprotocols. The requirements in Section 1910.95(g) Audiometric Testing Program, Section 1910.95 (h)Audiometric Test Requirements, Mandatory AppendixC to Section 1910.95 Audiometric MeasuringInstruments, Mandatory Appendix D to Section1910.95 Audiometric Test Rooms, and MandatoryAppendix E to Section 1910.95 Acoustic Calibrationof Audiometers, and the incorporated provisions ofAmerican Standard Specification for AudiometersS3.6-1969 provide standardized methodologies forconducting hearing tests designed to assure, as faras possible, that audiograms are accurate….It should be noted that it is impossible to eliminateaudiometric errors in their entirety. Any recordinglevel, no matter how it is set, will be subject tosome level of false positive and false negative errors.However, OSHA believes that the audiometric testingrequirements of Section 1910.95, if followed, will providereasonably accurate audiometric data for theadministration of the OSHA noise standard, and forthe recording of occupational hearing loss. As . . .commented: “(f)ollowing a standardized testing protocol(using 29 CFR 1910.95), and including adjustmentsfor age and the use of a retest in 30 days, hasprovided accurate, consistent results.” OSHA believesthat the provisions allowing the employer to ageadjust audiograms, seek advice from a physician orother licensed health care professional for determiningwork-relationship, retest within 30 days, andremove cases later found not to be persistent provideHANDBOOK91§1904.10

§1904.1092reasonable checks against false positive results beingrecorded on the 300 Log.Age CorrectionThe final rule carries forward the January 19, 2001rule’s conceptual framework allowing, but not requiring,the employer to age adjust an employee’s annualaudiogram when determining whether or not a 10-dBshift in hearing acuity has occurred….While the final rule allows the employer to agecorrectthe STS portion of the recording criteria, thereis no allowance for age correction for determining a25-dB hearing level. The AMA Guides specificallystate that total hearing loss should not be age adjusted,and there is no recognized consensus method forage adjusting a single audiogram. The method usedin Appendix F of Section 1910.95 is designed to agecorrect STS, not absolute hearing ability. The 25-dBcriteria is used to assure the existence of a serious illness,and reflects the employee’s overall health condition,regardless of causation. Age correcting theSTS will provide adequate safeguards against recordingage corrected hearing loss. Therefore, it would beinappropriate and unnecessary to age correct the 25-dB hearing level.Persistence... The OSHA noise standard addresses the issue oftemporary hearing losses by allowing the employerto retest the employee’s hearing within 30 days(1910.95(g)(7)(ii)). The 2001 rule adopted the same 30day retest option at Section 1904.10(b)(4) by allowingthe employer to delay recording if a retest was goingto be performed in the next 30 days.... OSHA has decided not to allow a longer retestingperiod. A longer retesting period would increasethe likelihood that the employer would lose track ofthe case and therefore inadvertently fail to record thecase. These errors would have a detrimental effect onthe accuracy of the records and run counter toOSHA’s goal of improving the quality of the injuryand illness data. The Agency also believes that usingdifferent time periods for retesting in the part 1904and Section 1910.95 rules would result in increasedconfusion for employers.The Agency has also rejected the suggestion thatall hearing loss cases must be confirmed prior torecording them. Waiting for one year or longer torecord an occupational hearing loss would move therecording to a year in which the original hearing losswas not initially discovered, would be administrativelymore complex for employers, and would have adetrimental effect on the hearing loss data. ManyOSHA RECORDKEEPINGlegitimate hearing loss cases could go unrecordedsimply because the employee did not receive a subsequentaudiogram due to job changes or someother circumstance that might occur before the nextannual audiogram required by the noise standard….... The OSHA noise standard at Section 1910.95(g)(3),requires that:Audiometric tests shall be performed by a licensed orcertified audiologist, otolaryngologist, or other physician,or by a technician who is certified by the Council ofAccreditation in Occupational Hearing Conservation, orwho has satisfactorily demonstrated competence inadministering audiometric examinations, obtaining validaudiograms, and properly using, maintaining and checkingcalibration and proper functioning of the audiometersbeing used. A technician who operates microprocessoraudiometers does not need to be certified. A technicianwho performs audiometric tests must be responsibleto an audiologist, otolaryngologist or physician.Because the noise standard already requiresaudiograms to be conducted by, or under the supervisionof, a qualified professional, subsequent audiogramsthat may refute the persistence of a recordedhearing loss will be reviewed by the appropriate professional.The Section 1904.10 simply cross-referencesthe need for the audiograms to be obtainedpursuant to the requirements of Section 1910.95, sothere is no need for the Section 1904.10 rule to repeatthe review requirement. . . . [T]he rule does notrequire the employer to maintain documentationconcerning the removal of cases. Section1910.95(m)(2) of the noise standard requires theemployer to keep records of all audiometric tests thatare performed, and those records will be available,should they be needed for future reference. As aresult, there is no need to add a duplicative paperworkburden in the Section 1904.10 rule. Therefore,Section 1904.10(b)(4) states that “If subsequentaudiometric testing indicates that an STS is not persistent,you may erase or line-out the recordedentry”. OSHA has added this additional regulatorylanguage to minimize the recording of temporaryhearing loss cases while capturing complete data onthe incidence of hearing loss disorders.Frequencies…OSHA has decided to continue to use the frequenciesused in the Section 1910.95 OSHA noise standard(2000, 3000, and 4000 Hz). While “most” communicationoccurs at lower frequencies, these areclearly audible frequencies where some speechHANDBOOK

occurs, and where hearing loss can have a significantimpact on workers’ lives outside of verbal communication.Using these frequencies reduces the burdenon employers that would be created by requiringseparate calculations of audiometric results, and, as...stated “(w)ith regard to the early effects of noiseexposure, it seems reasonable to extend the definitionacross the standard shift frequencies 2000, 3000,and 4000 Hz” (Ex. 3-62).Baseline Reference and Revision of Baseline…The two-part test for recording that is being adoptedin the final rule uses the baseline audiogram asthe reference point for determining whether or notthe employee has had a change in hearing whileemployed by his or her current employer, and thenuses audiometric zero as the reference point fordetermining the overall hearing ability of the affectedemployee. OSHA agrees that the employee’s baselineaudiogram is a superior reference point for measuringa change of hearing, a Standard Threshold Shift.Using the baseline audiogram taken upon employmentreduces the effect of any prior hearing loss theemployee have experienced, whether it is non-occupationalhearing loss or occupational hearing losscaused by previous employment. Therefore, the finalrule uses the employee’s original baseline audiogramas the reference for the STS component of an initialhearing loss cases, and uses the revised baselineaudiogram from that initial case as the reference forfuture cases.The 25-dB total hearing level component of anOSHA recordable hearing loss uses a reference ofaudiometric zero. This portion of the recording criteriais used to assure that the employee’s total hearinglevel is beyond the normal range of hearing, so itdoes not exclude hearing loss due to non-work causes,prior employment, or any other cause. The measurementsimply reflects the employee’s current hearingability as reflected in the most recent audiogram.This comparison to audiometric zero is a simple matter,because audiometers are designed to provideresults that are referenced to audiometric zero. Thehearing level at each frequency is oftentimes printedby the equipment, so there is rarely a need to performmanual calculations….[67 FR 77169, Dec.17, 2002]D. Other Hearing Loss Issues…The second issue involves the computation of aStandard Threshold Shift (STS), which is one part ofthe two-part recording criteria recently published (67FR 44037-44048). (The case must also reflect a 25 dBOSHA RECORDKEEPINGhearing level compared to audiometric zero.) TheSTS computation is to be made in accordance withthe Occupational Noise Exposure Standard 1910.95.As OSHA stated in the preamble to the July 1, 2002rulemaking, the Section 1904.10 regulation “[u]sesexisting measurements employers are already usingto comply with the OSHA noise standard, resulting inless paperwork burden for employers covered byboth rules” (67 FR 44040). Under 1910.95, theemployee’s current audiogram is compared to theemployee’s baseline audiogram, which may be theoriginal audiogram taken when the employee wasfirst placed in a hearing conservation program, or therevised baseline audiogram allowed by theOccupational Noise Exposure standard. Paragraph1910.95(g)(9) of the noise rule states:(9) Revised baseline. An annual audiogram maybe substituted for the baseline audiogram when, inthe judgment of the audiologist, otolaryngologist, orphysician who is evaluating the audiogram:(i) The standard threshold shift revealed by theaudiogram is persistent, or(ii) The hearing threshold shown in the annualaudiogram indicates significant improvement overthe baseline audiogram.OSHA’s former recording criteria required theemployer to track separate baselines for recordingand hearing conservation purposes. However, thenew Part 1904 hearing loss recording system relieson the existing 1910.95 calculations, and separatebaselines will no longer be required. In short, underthe new Part 1904, a recordable hearing loss caseoccurs when an employee experiences an STS (asdefined in 29 CFR 1910.95), the STS is work-related,and the employee’s aggregate hearing loss exceeds25dB from audio metric zero.[67 FR 44044-44047, July 1, 2002]Work Relationship... [T]he final rule states that there are no special rulesfor determining work-relationship and restates therule’s overall approach to determining work-relatedness-- that a case is work-related if one or moreevents or exposures in the work environment eithercaused or contributed to the hearing loss, or significantlyaggravated a pre-existing hearing loss.The final rule’s approach to determining workrelatednessdiffers from the January 2001 rule forthree reasons. First, although it is likely that occupationalexposure to noise in excess of 85 dBA will be acausal factor in hearing loss in some cases, a presumptionof work-relatedness is not justified in allcases. Further evaluation is needed to make thisHANDBOOK93§1904.10

§1904.1094determination. Second, the policy in the final rule isconsistent with the general principle in § 1904.5 thatwork-relatedness is to be determined on a case-bycasebasis. Third, the approach used in the January2001 rule is not supported by comments to the docket.None of the commenters supported the presumption,while many opposed it.The final rule also continues the 2001 rule’s policyallowing the employer to seek the guidance of aphysician or other licensed health care professionalwhen determining the work-relatedness of hearingloss cases. Paragraph (b)(6) of the rule states that if aphysician or other licensed health care professionaldetermines that the hearing loss is not work-relatedor has not been significantly aggravated by occupationalnoise exposure, the employer is not requiredto consider the case work-related, and therefore isnot required to record it.When evaluating the work relatedness of a givenhearing loss case, the employer should take severalfactors into account. ...One important factor to consideris the effectiveness of the hearing protection program.When employees are exposed to high levels ofnoise in the workplace, and do not wear appropriatehearing protection devices, a case of hearing loss ismore likely to be work-related. If an employee’s hearingprotection devices are not appropriate for thenoise conditions, if they do not fit properly, or if theyare not used properly and consistently, they may notprovide enough protection to prevent workplacenoise from contributing to a hearing loss case….Miscellaneous Hearing Loss Issues[A commenter remarked that] . . . “[i]t is difficult forworkers and their representatives to gain access toaudiometric exams or summaries of those exams.”Several of OSHA’s rules provide access rights toaudiometric data. Section 1910.95(g)(8) of the noisestandard requires employers to inform employees, inwriting, that they have experienced a standardthreshold shift. OSHA’s rule for access to employeeexposure and medical records (Section 1910.1020)requires employers to provide access to medicalrecords, exposure records, and analyses of recordsto employee’s and their designated representatives.Finally, the part 1904 regulation requires employersto provide employee access to the OSHA injury andillness data.State Plans... During 2002, the State Plan States were allowed tomaintain their policies for the recording of hearingloss to maintain their former requirements, whileOSHA RECORDKEEPINGOSHA reconsidered what the appropriate recordingcriteria should be. In the Federal Register documentannouncing the one year delay and the interim policyfor year 2002, OSHA stated that when it issues a finaldetermination for the recording of occupational hearingloss for calendar years 2003 and beyond, thestates would be required to have identical criteria (66FR 52033). Now that OSHA has issued its final determination,the States are required to promulgate identicalcriteria.[67 FR 77168-77169, Dec.17, 2002]B. OSHA’s Reasons for Retaining the Hearing LossColumnOSHA has decided to retain the hearing loss column.Doing so will improve the Nation’s statistical informationon occupational hearing loss, facilitate analysisof hearing loss data at individual workplaces, andimprove the Agency’s ability to assess this commonoccupational disorder. One of the major functions ofthe Part 1904 regulation is to produce national statisticsfor occupational injury and illness (29 U.S.C.657.(c)(1)). The data will clearly improve the Nation’sstatistics on occupational hearing loss….Because the BLS statistics on case characteristicsonly reflect injuries and illnesses that result in daysaway from work, and workers commonly suffer hearingloss and never require a day away from work, theBLS estimates represent only a minor fraction of thetotal hearing loss experienced by U.S. workers anddo not reflect the incidence of occupational hearingloss. A discussion of the BLS data systems and howthey function may be found at http://www.bls.gov/bls/safety.htm. By providing a separate 300 Log columnfor this disorder, the data for hearing loss willbe summarized by the employer at the end of theyear, and will be captured by the BLS when sampledemployers submit their summary injury and illnessinformation. Thus, national statistics will be available,for the first time, that include cases that result indays away from work and those that do not….The resulting statistics will be of value to severalgroups. The data will have value on their own as apublic information resource that can be accessed bystudents, hearing loss professionals, researchers, andothers. The data can be used by policy makers to prioritizehearing loss prevention efforts and measurethe performance of those efforts, whether they areenforcement, guidance, outreach or consultation.OSHA believes that the greatest value of the data willbe realized by employers and employees at individualworkplaces. These individuals have always hadthe ability to determine the incidence of hearing lossHANDBOOK

cases in their workplace via analysis of the individualcase descriptions on the OSHA 300 Logs; the hearingloss column will only make this task easier. Thegreater value of the column lies in the new ability tobenchmark the hearing loss statistics of an individualworkplace to the hearing loss statistics for industryas a whole, or to hearing loss statistics for a comparableindustry classification. This will allow employersand employees to compare their hearing lossprevention performance to the performance of theirpeers and know whether or not their efforts are succeeding.This is a function that is not required underthe Section 1910.95 noise standard, and is a usefulpurpose of the Part 1904 records.OSHA disagrees with the arguments against ahearing loss column. In response to the criticism thatthe data will not shed light on causes or provide valuein determining preventive strategies, …a mere entryon the Log does not, by itself, show an employer oremployee how to prevent hearing loss. That is thefunction of further analysis of the hearing loss cases,the workplace, and the employer’s hearing conservationprogram. In this matter, hearing loss is no differentthan any other type of injury or illness. The Logprovides descriptive data about occupational injuriesand illnesses and some of the circumstances surroundingthem. It does not replace the need forcausal analysis of occupational injuries and illnesses....OSHA notes that the data only reflect work-relatedhearing loss cases. Part 1904 requires the employer toconsider the case to be work-related only when exposureat work either causes or contributes to a hearingloss, or significantly aggravates a pre-existing hearingloss (Section 1904.5). Section 1904.10(b)(6) allows theemployer to consider the case non work-related if aphysician or other licensed health care professionaldetermines the hearing loss is not work related.Finally, the column is not burdensome. Althoughthe rule does not require employers to use computersoftware to track injuries and illnesses, many employersdo so voluntarily, and these employers will havesome minimal initial costs to revise their software.Employers will also experience a small training costto familiarize the employees who maintain therecords with the new column. However, once thesetasks are completed, it is no more burdensome tocheck a hearing loss column than one of the othercolumns on the form….D. Other Hearing Loss Issues…Third, OSHA has noted concern among employersbecause the application of the new two-part test inthe new Section 1904.10 recording criteria will resultin an increase in recorded hearing loss cases. Asnoted in the July 1, 2002 rulemaking, the new criteriawill capture more hearing loss cases. Employers willexperience an increase in recorded hearing losscases in 2003 and future years. Caution must be usedwhen comparing the 2003 and future data to prioryears, when the 25 dB criteria for recordkeeping wasused. OSHA recognizes this increase, and will takethe changes in the recordkeeping rule into accountwhen evaluating an employer’s injury and illnessexperience.Use this ‘decision tree’ to determine whether the results of a audiometric examgiven on or after January 1, 2003 reveal a recordable STS.NONONOHas the employee suffered a STS (an average 10dBor more loss relative to the most current baselineaudiogram averaged at 2000, 3000 and 4000 Hz) inone or both ears according to the provisions of theOSHA noise standard (§1910.95)?*YESIs the employee’s overall hearing level at 25dB ormore above audiometric zero averaged at 2000,3000 and 4000 Hz in the affected ear(s)?YESIs the hearing loss work-related?YESNote: In all cases, use the most currentbaseline to determine recordabilityas you would to calculate aSTS under the hearing conservationprovisions of the noise standard(§1910.95). If an STS occurs in onlyone ear, you may only revise thebaseline audiogram for that ear.* The audiogram may be adjustedfor presbycusis (aging) as set out in1910.95.** A separate hearing loss columnon the OSHA 300 Log beginning inCalendar year 2004.Do not recordRecord on the OSHA 300 Log and check the“Injury” or “All other Illnesses” column **OSHA RECORDKEEPINGHANDBOOK95§1904.10

FREQUENTLY ASKED QUESTIONS: Section 1904.10 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.10 Recording criteria for cases involving occupational hearing lossQuestion 10-1. If an employee suffers a StandardThreshold Shift (STS) in only one ear, may theemployer revise the baselines for both ears?No. A Standard Threshold Shift, or STS, is defined inthe occupational noise exposure standard at 29 CFR1910.95(g)(10)(i) as a change in hearing threshold, relativeto the baseline audiogram for that employee, ofan average of 10 decibels (dB) or more at 2000, 3000,and 4000 hertz (Hz) in one or both ears. The employeris permitted only to revise the baseline in the earwhere the employee suffered an STS change in hearingthreshold.Question 10-2. Which baseline is used to determineif a recordable Standard Threshold Shift (STS) hasoccurred this year?Employers should use the same baseline that theywould use to comply with OSHA’s Noise Standard,Part 1910.95. If the employer chose to revise anemployee’s baseline due to a previous STS, then theemployer would use the same revised baseline whendetermining recordability under section 1904.10 ofthe recordkeeping regulation.Question 10-3. If an employee experienced a recordablehearing loss case, where would the employerrecord the case on the OSHA 300 Log?Prior to 2004, employers should record work-relatedhearing loss cases according to the instructionsincluded with the Recordkeeping Forms. If the loss isassociated with an event, such as acoustic trauma(e.g., an explosion), it would be recorded as an injurywith a check mark in column (M)(1). If the loss is notan injury, it would be recorded as an illness, with acheck mark in the all other illness column. Beginningin January 2004, employers must record all hearingloss cases in the separate hearing loss column(M)(5).LETTERS OF INTERPRETATION: Section 1904.10Section 1904.10 Recording criteria for cases involving occupational hearing lossOSHA requirements are set by statute, standards and regulations. Letters of interpretation explainthese requirements and how they apply to particular circumstances, but they cannot create additionalemployer obligations. These letters constitute OSHA’s interpretation of the requirements discussed.Note that OSHA enforcement guidance may be affected by changes to OSHA rules. Also, from time totime we update our guidance in response to new information. To keep apprised of such developments,you can consult OSHA’s website at http://www.osha.gov.Letters of Interpretation constitute OSHA’s interpretation only of the requirements discussed and maynot be applicable to any situation not delineated within the original correspondence.Letter of interpretation related to section 1904.10(b)(4) –Recording criteria for recordkeeping cases involving occupational hearing loss.§1904.1096OSHA RECORDKEEPINGHANDBOOK

March 4, 2004Mr. Carl O. Sall, CIHDirector of Occupational Safetyand Health ComplianceComprehensive Health Services, Inc.8229 Boone Boulevard, Suite 700Vienna, VA 22182-2623Dear Mr. Sall:This is in response to your letter dated February 13, 2003. Thank you for your comments pertainingto the Occupational Safety and Health Administration's (OSHA) Injury and Illness Recordingand Reporting Requirements contained in 29 CFR Part 1904. In your letter you requested clarificationson some issues related to the recording criteria for cases involving occupational hearing loss.Your questions are summarized below, followed by our responses.Question: Does the thirty-day retest start on the day the initial hearing exam was completed, or onthe date that the results are given to the employer?Response: For OSHA purposes, the thirty-day retest begins from the date of the first test underSection 1904.10(b)(4) in the regulation. Also, see the September 4, 1991 letter of interpretation toMr. Paul V. Williams from Patricia Clark. A retest audiogram may not be substituted for an initialaudiogram unless it is obtained within thirty calendar days of the date of initial audiogram regardlessof the fact that an outside evaluating concern is used.Question: Can I correct my OSHA 300 Log if on a subsequent exam an employee's hearingimproves to a point that is no longer recordable?Response: For purposes of OSHA recordkeeping, 1904.10(b)(4) states that "If subsequent audiometrictesting indicates that a Standard Threshold Shift (STS) is not persistent, you may erase orline-out the recorded entry." While the recordkeeping rule does not require the employer to maintaindocumentation concerning the removal of cases, Section 1910.95(m)(2) of the noise standardrequires the employer to keep records of all audiometric tests that are performed. Therefore, thoserecords will be available, should they be needed for future reference.Question: Does the hearing loss recordkeeping requirement apply to the Construction Industry?Response: Yes. Employers in the construction industry are required to follow the recordkeepingrequirements of 1904. Hearing losses of employees that meet the recording criteria set forth in 29CFR 1904.10 must be recorded.Finally, you have asked OSHA to review your draft examples of how to properly record an occupationalhearing loss case. Work-related hearing loss cases must be recorded if they meet therequirements of 1904.10. Two basic questions must be answered:1. Did the employee suffer a Standard Threshold Shift (STS) of 10 dB or more in one or both ears?2. Is the employee's overall hearing level 25 dB or more above audiometric zero in the same orboth ears?If both questions can be answered yes, then it must be recorded on the OSHA 300 log. A decisiontree has been enclosed to aid you with your recordkeeping requirements.Thank you for your interest in occupational safety and health. We hope you find this informationhelpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation lettersexplain these requirements and how they apply to particular circumstances, but they cannotcreate additional employer obligations. This letter constitutes OSHA's interpretation of the requirementsdiscussed. Note that our enforcement guidance may be affected by changes to OSHA rules.OSHA RECORDKEEPINGHANDBOOK97§1904.10

Also, from time to time we update our guidance in response to new information. To keepappraised of such developments, you can consult OSHA's website at http://www.osha.gov. If youhave any further questions, please contact the Division of Recordkeeping Requirements, at 202-693-1702.Sincerely,Frank Frodyma, Acting DirectorDirectorate of Evaluation and AnalysisEnclosureLetter of interpretation related to sections 1904.10, 1910.95, 1910.95(g)(1), 1910.95(g)(5), 1910.95(g)(7),1910.95(g)(9) and 1910.95(g)(10) –Baseline audiogram revision due to persistent STS or improved thresholds; revision must be made for eachear separately.May 8, 2003Ms. Linda BallasLinda Ballas & Associates4413 Copper Creek LaneToledo, OH 43615Dear Ms. Ballas:Thank you for your January 21 letter to the Occupational Safety and Health Administration(OSHA) regarding the Occupational Noise standard. In your letter, you requested a clarificationabout how baseline audiograms should be revised. You also pointed out that two of our letters ofinterpretation provide contradictory guidance and are causing confusion among hearing associates.A corrected response appears below.The Occupational Noise Standard, 29 CFR 1910.95, requires employers to establish and maintainan audiometric testing program for all employees whose exposures equal or exceed an 8-hourtime-weighted average (TWA) of 85 decibels on the “A” scale (dBA). Annual audiograms are comparedto the baseline audiogram to determine if hearing loss is occurring.If a standard threshold shift (STS), defined as an average of 10 dBA or more at 2000, 3000, and4000 Hz, occurs in either ear, the employer must follow certain procedures outlined in the standard,including notifying the affected employee in writing. Hearing loss cases that meet specific criteriamust be recorded on the OSHA 300 log according to the recordkeeping requirements of1904.10.With regard to your request for a clarification as to how to revise the baseline, OSHA allowsemployers to revise the baseline by substituting the annual audiogram for the baseline audiogramwhen the reviewing professional determines that an STS is persistent. Such a revision would serveto prevent the same STS from being identified repeatedly for an employee whose hearing has stabilized.As a corollary, an annual audiogram may be substituted for the baseline audiogram whenthresholds have significantly improved.§1904.1098OSHA RECORDKEEPINGHANDBOOK

When the professional evaluating the audiogram determines that a baseline revision is appropriate,whether due to a persistent STS or improved thresholds, the baseline must be revised for each earseparately. For example, although an employee’s annual audiogram shows hearing thresholds deterioratingin both ears simultaneously, occasionally an audiogram will show that an employee is sufferingan STS in only one ear. This can sometimes be attributed to working near a loud noisesource that is close to the affected ear. If such a shift is shown to be persistent in the judgment ofthe professional evaluating the audiogram, then the baseline audiogram may be revised due to thepersistent STS. A baseline audiogram that shows a persistent shift for only one ear may be revisedfor only that ear. The baseline may not be revised for the other unaffected ear. This procedure isrequired because it provides a clear indication of how each ear is affected by noise.Thank you for your interest in occupational safety and health and bringing these letters to ourattention. The erroneous 1996 letter to Mr. Dean Harris will be removed from our website shortly.We hope you find this information helpful. OSHA requirements are set by statute, standards andregulations. Our interpretation letters explain these requirements and how they apply to particularcircumstances, but they cannot create additional employer obligations. This letter constitutesOSHA’s interpretation of the requirements discussed. Note that our enforcement guidance may beaffected by changes to OSHA rules. Also, from time to time we update our guidance in response tonew information. To keep apprised of such developments, you can consult OSHA’s website athttp://www.osha.gov. If you have any further questions, please feel free to contact the Office ofHealth Enforcement at (202) 693-2190.Sincerely,Richard E. Fairfax, DirectorDirectorate of Enforcement ProgramsOSHA RECORDKEEPINGHANDBOOK99§1904.10

§1904.11Section 1904.11Recording criteria for work-related tuberculosis cases(66 FR 6129, Jan. 19, 2001)REGULATION: Section 1904.11Subpart C – Recordkeeping forms and recording criteria(66 FR 6123, Jan. 19, 2001)Note to Subpart C: This Subpart describes the work-related injuries and illnesses that an employer must enterinto the OSHA records and explains the OSHA forms that employers must use to record work-related fatalities,injuries, and illnesses.Section 1904.11 Recording criteria for work-related tuberculosis cases(a) Basic requirement.If any of your employees has been occupationallyexposed to anyone with a known case of activetuberculosis (TB), and that employee subsequentlydevelops a tuberculosis infection, as evidenced by apositive skin test or diagnosis by a physician or otherlicensed health care professional, you must recordthe case on the OSHA 300 Log by checking the “respiratorycondition” column.(b) Implementation.(1) Do I have to record, on the Log, a positive TBskin test result obtained at a pre-employment physical?No, you do not have to record it because theemployee was not occupationally exposed to aPREAMBLE DISCUSSION: Section 1904.11(66 FR 6013-6017, Jan. 19, 2001)known case of active tuberculosis in your workplace.(2) May I line-out or erase a recorded TB case if Iobtain evidence that the case was not caused byoccupational exposure?Yes, you may line-out or erase the case from theLog under the following circumstances:(i) The worker is living in a household with a personwho has been diagnosed with active TB;(ii) The Public Health Department has identifiedthe worker as a contact of an individual with acase of active TB unrelated to the workplace; or(iii) A medical investigation shows that theemployee’s infection was caused by exposure toTB away from work, or proves that the case wasnot related to the workplace TB exposure.The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.11 Recording criteria for work-relatedtuberculosis casesSection 1904.11 of the final rule being publishedtoday addresses the recording of tuberculosis (TB)infections that may occur to workers occupationallyexposed to TB.... There are two general stages of TB,tuberculosis infection and active tuberculosis disease.Individuals with tuberculosis infection and noactive disease are not infectious; tuberculosis infectionsare asymptomatic and are only detected by apositive response to a tuberculin skin test....The text of Section 1904.11 of the final rule states:(a) Basic requirement.If any of your employees has been occupationallyexposed to anyone with a known case of activetuberculosis (TB), and that employee subsequentlydevelops a tuberculosis infection, as evidenced by apositive skin test or diagnosis by a physician or otherlicensed health care professional, you must recordthe case on the OSHA 300 Log by checking the “respiratorycondition” column.(b) Implementation.(1) Do I have to record, on the Log, a positive TBskin test result obtained at a pre-employment physical?No, because the employee was not occupationallyexposed to a known case of active tuberculosis inyour workplace.100OSHA RECORDKEEPINGHANDBOOK

(2) May I line-out or erase a recorded TB case if Iobtain evidence that the case was not caused byoccupational exposure?Yes. You may line-out or erase the case from theLog under the following circumstances:(i) The worker is living in a household with a personwho has been diagnosed with active TB;(ii) The Public Health Department has identifiedthe worker as a contact of an individual with acase of active TB unrelated to the workplace; or(iii) A medical investigation shows that theemployee’s infection was caused by exposure toTB away from work, or proves that the case wasnot related to the workplace TB exposure.Positive Skin Tests...A positive tuberculin skin test indicates that theemployee has been exposed to Mycobacteriumtuberculosis and has been infected with the bacterium.Although the worker may or may not have activetuberculosis disease, the worker has become infected.Otherwise, his or her body would not haveformed antibodies against these pathogens. (OSHA isaware that, in rare situations, a positive skin testresult may indicate a prior inoculation against TBrather than an infection.)OSHA believes that TB infection is a significantchange in the health status of an individual, and, ifoccupational in origin, is precisely the type of illnessCongress envisioned including in the OSHA injuryand illness statistics. Contracting a TB infection froma patient, client, detainee, or other person in theworkplace would cause serious concern, in OSHA’sview, in any reasonable person. Once a worker hascontracted the TB infection, he or she will harbor theinfection for life. At some time in the future, theinfection can progress to become active disease, withpulmonary infiltration, cavitation, and fibrosis, andmay lead to permanent lung damage and death. Anemployee harboring TB infection is particularly likelyto develop the full-blown disease if he or she mustundergo chemotherapy, contracts another disease, orexperiences poor health....As discussed elsewhere in this document (see theLegal Authority section above), Congress did notintend OSHA’s recordkeeping system only to captureconditions over which the employer has completecontrol or the ability to prevent the condition. The Actthus supports a presumption of work-relatedness forillnesses resulting from exposure in the workplace,and the OSHA recordkeeping system has alwaysreflected this position (although a few specific exceptionsto that presumption are permitted, including anexception for common colds and flu). In accordancewith that presumption, when an employee isexposed to an infectious agent in the workplace, suchas TB, chicken pox, etc., either by a co-worker, client,patient, or any other person, and the employeebecomes ill, workplace conditions have either causedor contributed to the illness and it is therefore workrelated.Since, as discussed above, TB infection isclearly a serious condition, it is non-minor and mustbe recorded.Employee-to-Employee Transmission...OSHA believes, under the positional theory ofcausality, that non-minor illnesses resulting from anexposure in the work environment are work-relatedand therefore recordable unless a specific exemptionto the presumption applies. Infection from exposureto another employee at work is no different, in termsof the geographic presumption, from infection resultingfrom exposure to a client, patient, or any otherperson who is present in the workplace. The transmissionof TB infection from one employee to anotherperson at work, including a co-worker, clearly isnon-minor and is squarely within the presumption....[I]n the final rule being published today, TBcases are recordable without regard to the relativerisk present in a given industry, providing only thatthe employee with the infection has been occupationallyexposed to someone with a known case ofactive tuberculosis. Employers may rebut the presumptiononly if a medical investigation or other specialcircumstances reveal that the case is not workrelated.In the final rule, OSHA has not adopted the “specialindustries” presumption, for several reasons.First, doing so would be inconsistent with theapproach taken by the Agency in other parts of therule, i.e., specific industries have not been singledout for special treatment elsewhere. Second, a “specialindustries” presumption is not needed becausethe approach OSHA has taken in this section will provideemployers with better ways of rebutting workrelatednesswhen that is appropriate. Finally, the specialindustries approach is not sufficiently accurate orwell enough targeted to achieve the intended goal.Many cases of occupationally transmitted TB occuramong employees in industries other than the “specialindustries,” and evidence shows that the risk ofTB infection varies greatly among facilities in the specialindustries....OSHA agrees that a case of TB should berecorded only when an employee has been exposedto TB in the workplace (i.e., that the positional theory§1904.11OSHA RECORDKEEPINGHANDBOOK101

§1904.11of causation applies to these cases just as it does toall others). OSHA has added an additional recordingcriterion in this case: for a TB case occurring in anemployee to be recordable, that employee must havebeen exposed at work to someone with a knowncase of active tuberculosis....Under the final rule, if a worker reports a case ofTB but the worker has not been exposed to an activecase of the disease at work, the case is not recordable.However, OSHA sees no need for the employerto document such workplace exposure, or for theAgency to require a higher level of proof that workplaceexposure has occurred in these compared withother cases. Further, OSHA knows of no justificationfor excluding cases simply because they are the firstor only case discovered in the workplace. If a workercontracted the disease from contact with a co-worker,patient, client, customer or other work contact, thecase would be work-related, even though it was thefirst case detected. Many work- related injury and illnesscases would be excluded from the recordkeepingsystem if cases were only considered to be workrelatedwhen they occurred in clusters or epidemics.This was clearly not Congress’s intent.The final rule’s criteria for recording TB casesinclude three provisions designed to help employersrule out cases where occupational exposure is notthe cause of the infection in the employee (i.e., wherethe infection was caused by exposure outside thework environment). An employer is not required torecord a case involving an employee who has a positiveskin test and who is exposed at work if (1) theworker is living in a household with a person whohas been diagnosed with active TB, (2) the PublicHealth Department has identified the worker as acontact of a case of active TB unrelated to the workplace,or (3) a medical investigation shows that theemployee’s infection was caused by exposure to TBaway from work or proves that the case was notrelated to the workplace TB exposure....OSHA has added an implementation question tothe final rule to make sure that employers understandthat pre-employment skin test results for TBare not work-related and do not have to be recorded.These results are not considered work-related for thepurposes of the current employer’s Log because thetest result cannot be the result of an event or exposurein the current employer’s work environment....[T]he final rule allows employers to rebut thepresumption of work-relatedness if a medical evaluationconcludes that the TB infection did not arise as aresult of occupational exposure, a physician or otherlicensed health care professional could use the CDCGuidelines or another method to investigate the originof the case. If such an investigation resulted ininformation that demonstrates that the case is notrelated to a workplace exposure, the employer neednot record the case. For example, such an investigationmight reveal that the employee had been vaccinatedin childhood with the BCG vaccine. The employermay wish, in such cases, to keep records ofthe investigation and determination.FREQUENTLY ASKED QUESTIONS: Section 1904.11 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.11 Recording criteria for work-related tuberculosis casesThis section will be developed as letters of interpretation become available.LETTERS OF INTERPRETATION: Section 1904.11Section 1904.11 Recording criteria for work-related tuberculosis casesThis section will be developed as letters of interpretation become available.102OSHA RECORDKEEPINGHANDBOOK

Section 1904.12Recording criteria for cases involving work-relatedmusculoskeletal disorders(66 FR 6123, Jan. 19, 2001)REGULATION: Section 1904.12Subpart C – Recordkeeping forms and recording criteria(66 FR 6123, Jan. 19, 2001)§1904.12Note to Subpart C: This Subpart describes the work-related injuries and illnesses that an employer must enterinto the OSHA records and explains the OSHA forms that employers must use to record work-related fatalities,injuries, and illnesses.Section 1904.12 Recording criteria for cases involvingwork-related musculoskeletal disordersDeletion of 29 CFR 1904.12.(68 FR 38606, June 30, 2003)Having concluded that an MSD column on theLog is unnecessary, OSHA believes that Section1904.12 should be deleted. The sole purpose of thatsection was to establish the requirement for employersto check the MSD column for cases meeting thedefinition of MSD. In view of this determination, it isnot necessary to consider whether the definition ofMSD in Section 1904.12 would be appropriate if acolumn were needed, or whether alternative definitionswould be appropriate. The deletion of Section1904.12 relieves employers from the legal requirementto check the column; however, it has no effecton their obligation to record all cases meeting therequirements of Sections 1904.4 – 1904.7....PREAMBLE DISCUSSION: Section 1904.12(66 FR 6022, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.12 Recording criteria for cases involvingwork-related musculoskeletal disorders.[Federal Register, Vol. 68, No. 125, June 30, 2003,pages 38603 - 38606.]B. OSHA’s Determination That an MSD Column IsUnnecessaryOSHA has carefully reviewed the determinationmade in the January 19, 2001 rule and the recordsupporting that determination, as well as the evidencesubmitted by the participants in the ergonomicsforums and the parties responding to the July2002 request for comment on the need for an MSDcolumn. The Agency has determined that this recorddoes not support the column requirement. The principaljustifications advanced for the column are that itwould be a useful tool in analyzing and addressingergonomic hazards in individual workplaces and thatit would yield more accurate national statistics onergonomic injuries. As discussed below, neither ofthese justifications is persuasive.The MSD column would not be a useful tool inaddressing MSDs at the establishment level for tworeasons. First, because the column would show onlythe total number of MSDs that occurred in an establishmentand nothing about the nature or cause ofthese disorders, it would be of very little practical usein devising abatement methods for ergonomic hazards.Second, to the extent that employers and workersbelieve that the total count of MSD cases is relevantin an establishment, the number is easilyobtainable without the column requirement.The January 2001 preamble states that the MSDcolumn would be useful because it would enableemployers and others to determine at a glance thetotal number of these disorders that had occurred.However, the total number, standing alone, tellsnothing about the specific types of disorders thatmay be involved. The MSD definition in Section1904.12 encompasses a broad range of health conditionsfrom back injuries to carpal tunnel syndrome.OSHA RECORDKEEPINGHANDBOOK103

§1904.12Thus, the total MSD count in an establishment couldinclude a number of disparate disorders that have littlein common. More importantly, the total number ofcases tells nothing about the possible causes andprevention of ergonomic hazards. Simply knowingthat a certain number of MSD cases have occurreddoes not permit one to determine which jobs orworking conditions pose ergonomic hazards andhow they may be abated.To effectively analyze and address ergonomicinjuries that are occurring in workplaces, employersand others must be able to link specific types ofinjuries to specific characteristics of jobs or workingconditions. This requires evaluation of each individualcase to determine the part of the body affected,the nature of the job performed by the injuredemployee and other relevant data. Such informationis currently available in the case-description sectionof the 300 Log and in the 301 Incident Report.Evaluation of these case-entry data, particularly thejob title and the description of the injury and affectedbody part contained in Columns C and F on the 300Log, will enable employers, workers and OSHA toidentify specific types of MSDs, to link specific MSDinjuries to specific ergonomic risk factors, and toidentify trends in certain jobs or work practices overtime.The MSD column would not assist with the kindof detailed analysis necessary to effectively abateMSDs at the establishment level. Conscientiousemployers, employees and authorized representativeswho wish to address MSDs in their workplaceswill do so, as they have in the past, by examining theentire Log, whether or not an MSD column is implemented.Some employers and others may wish touse the Section 1904.12 definition of MSD as part oftheir comprehensive records analysis or they maywish to use a different definition more suited to theirspecific working conditions. For example, nursinghome employers may wish to focus particularly onback cases in analyzing the effectiveness of patientlifting and repositioning abatement measures. On theother hand, employers and others who do not wishto perform a comprehensive analysis would not beable to use an MSD column as a substitute for theanalysis.To the extent that the aggregate total of MSDcases is of some relevance, the number can easily bedetermined without a column. Based on the description-of-injuryinformation in column F of the Log, onecan very quickly identify which cases are MSDsunder the Section 1904.12 definition, or an alternativedefinition such as the one in OSHA’s meatpackingguidelines. The MSD column is simply not necessaryfor this purpose. For these reasons, OSHA concludesthat the MSD column would not be a useful tool atthe establishment level.A related point argued by some is that an MSDcolumn is needed to ensure effective enforcement ofthe general duty clause. However, the column hasnever been in effect and has not been a factor inenforcement of the clause. It is difficult to see the utilityof simply checking an MSD column given thedetailed nature of the information needed by OSHAto sustain a general duty clause citation. The casedescription data in the 300 and 301 forms is availableto assist OSHA in its inspection activities. This informationpermits a more comprehensive understandingof MSDs in workplaces than would a singleaggregate statistic produced by a column. Accordingly,there is no need for an MSD column on theLog for enforcement purposes.The other justification cited for the MSD column isthat it is necessary to improve the accuracy and usefulnessof the national injury and illness statistics.However, OSHA concludes that MSD column wouldnot materially improve the national statistics onMSDs. The national statistics already include comprehensiveinformation about MSDs that result indays away from work, including the total numberand incidence rate of these disorders. As to otherMSDs, the MSD column would allow the Bureau ofLabor Statistics (BLS) to calculate the total number ofthese cases, but not to analyze their characteristics inany way. OSHA does not believe that a new statisticon total MSDs would be useful without the ability toassess the specific characteristics of these disorders.To obtain additional data necessary to allow BLS toassess the characteristics of MSDs that do notrequire days away from work would require significantchanges to the BLS survey system not contemplatedin the proposed recordkeeping rule and notrequested by any party.Why the MSD Column Would Not SignificantlyImprove the BLS Statistics.If the MSD column were implemented, employersparticipating in the BLS survey would report annuallythe total number of MSD cases checked on the Log.This information would enable BLS to publish thetotal number and incidence rates of MSDs of alltypes. Thus, the statistical tables depicting the totalnumber and incidence rates of non-fatal injuries andillnesses by industry would include an additional columnfor total MSD cases. (See, e.g., WorkplaceInjuries and Illnesses in 2000, Tables S14 and S16.)104OSHA RECORDKEEPINGHANDBOOK

These new statistics would add only marginally tothe information currently available. As describedabove, the BLS case characteristic data already presenta comprehensive picture of the most severeMSDs, including separate statistics on the total numberand incidence rate of these disorders. Accordingly,the MSD column would add minimally to thenational statistics on MSDs that resulted in daysaway from work.The new data would be relevant primarily for thepurpose of estimating the number of MSDs that donot result in days away from work. The number ofthese MSDs could be approximated by subtractingthe number of days away from work MSD casesreported by BLS from the total number of MSDs ofall types produced by the column. However this estimatewould have limited utility because the absenceof case characteristic data for cases that do not resultin days away from work MSDs precludes analysis ofthem.As noted above, the BLS survey elicits descriptiveinformation only on injuries and illnesses, includingMSDs, resulting in days away from work. The BLSdatabase of case-characteristics has never includedinformation on or analyses of cases that do not resultin days away from work. Accordingly, BLS cannotanalyze the characteristics of these injuries and illnessesas it can days away from work cases. Addingan MSD column to the Log would not change thebasic structure of the survey, and would not produceany additional descriptive data on the less severecases. Significant changes in the survey itself wouldbe required before BLS could collect this type ofdata.Because an MSD column would not enable BLS tocollect case characteristic data on all MSDs, any newstatistic reporting the aggregate total number of suchcases would be difficult to interpret. There would beno way to distinguish among different types of thesedisorders, determine possible causal factors, evaluatedemographics, or perform the other analyses.OSHA believes that total number of MSDs, standingalone, would not be useful without the ability to analyzethe underlying data.Having a column requirement might be warrantedif a specific injury or illness was substantially misrepresentedin the BLS statistics for cases with daysaway from work. For example, OSHA recently foundthat the estimate of days away from work occupationalhearing loss cases, which totaled only 316cases in the year 2000, probably represents only atiny fraction of the total hearing loss cases in theNation because workers commonly suffer hearingloss and never require a day away from work. (See,e.g., 67 FR 77168 explaining the need for a hearingloss column on the Log.) In the 2001 Recordkeepingrule, OSHA stated that it believed that many cases ofhearing loss, probably numbering in the thousands,do not result in days away from work and are thereforenot represented in the BLS statistics. (66 FR6005). Because the BLS statistics on hearing loss representedonly a minor fraction of the hearing lossexperienced by workers, OSHA believed that a columnwas necessary to obtain useful data on hearingloss cases. In contrast, BLS produces a wealth ofuseful information about MSDs. The BLS statistics forthe year 2000 included over 577,800 MSDs with daysaway from work, accounting for more than elevenpercent of all private sector occupational injuries andillnesses. (See Lost-worktime Injuries and Illnesses:Characteristics and Resulting Time Away From Work,2000, page 3.) This is a large number of cases, representingthose MSDs with the most serious outcomes.Moreover, this total figure can be broken down andanalyzed in many different ways using BLS’s casecharacteristics. Thus, there is no need for a column toobtain useful data for MSDs, as there was for hearingloss cases.OSHA does not believe that altering the definitionused to trigger the column requirement would producemore useful data. As some . . . have observed,the Section 1904.12 definition is similar in some waysto definitions OSHA has used in the past, and thatBLS and other agencies now use. OSHA believes thatthis definition can be useful for some purposes.Different definitions might also be appropriate insome contexts. For example, in evaluating the effectivenessof an ergonomics program targeted to certainspecific risk factors, it might be useful to defineMSDs to include injuries likely to be caused by exposureto such factors. This is very different from usingan MSD column to generate a single aggregate statistic.Regardless of how MSDs are defined for purposesof the OSHA recordkeeping rule, a columnrequirement would produce only an aggregate totalof cases that could not be further analyzed for significance.No such statistic would be useful without ameans of understanding and interpreting it.Finally OSHA has considered whether the BLSsurvey should be modified to gather case-characteristicdata for all recordable MSDs, regardless of type orseverity. The Agency believes that it is reasonable forBLS to collect detailed characteristic data only forinjuries and illnesses that result in days away fromwork at this time. BLS cannot collect comprehensivedata on every aspect of every injury or illness. The§1904.12OSHA RECORDKEEPINGHANDBOOK105

§1904.12current survey was designed and implemented withthe support and assistance of the safety and healthcommunity and the 40 participating States to capturedetailed information on the most severe cases. (SeeBLS Handbook of Methods, Ch. 9, OccupationalSafety and Health Statistics) The statistical system, ofwhich the survey is a part, fulfills the statutoryrequirement to ‘’compile accurate statistics on workinjuries and illnesses,” 29 U.S.C. 673, by producingdata on the overall number and incidence rate ofinjuries and illnesses, by industry, and by providingdetailed statistics on case characteristics of occupationalinjuries and illnesses, that result in days awayfrom work, including MSDs, to assist in the understandingand prevention of these disabling cases.The system is not currently designed to gather separatestatistics on the incidence rates of specificinjuries or illnesses.Nothing in the record demonstrates that BLSshould treat MSDs differently from other injuries andillnesses by publishing separate statistics on allrecordable cases of these disorders. OSHA does notbelieve that MSDs are fundamentally different, forstatistical purposes, from bruises, cuts, lacerations,burns and other common injuries which may or maynot result in days away from work depending onseverity. As discussed above, the national statisticspresent a detailed picture of the MSD problem on avariety of levels. These data are both accurate anduseful. Accordingly, OSHA concludes that there is nojustification for the MSD column on the Log.Consultation With NACEWhile the Agency concludes that the MSD column onthe Log would not produce significantly more accurateor useful statistics, it is committed to exploring othermeans of improving the information available onMSDs and effectively utilizing this information toreduce ergonomic-related injuries and illnesses in theworkplace. As part of the comprehensive approach foraddressing MSD hazards, the Department has createdthe National Advisory Committee on Ergonomics(NACE) to advise the Assistant Secretary of Labor forOccupational Safety and Health on ergonomic guidelines,research, and outreach assistance. The Agencyhas indicated that it will seek advice from NACE in thefollowing areas: (1) The development of various industryor task-specific guidelines; (2) identification of gapsin the existing research base related to applyingergonomic principles to the workplace; (3) current andprojected research needs and efforts, including informationprovided by NIOSH; (4) methods of providingoutreach and assistance that will communicate thevalue of ergonomics to employers and employees, and(5) ways to increase communication among stakeholderson the issue of ergonomics. As part of this effort,the Agency intends to seek input from NACE on how tocharacterize the variety of ergonomic-related injuries inthe workplace in ways that will be most useful in helpingemployers and others to solve ergonomic problems.NACE’s expertise will also be useful in advisingthe Agency on ways in which statistics on these injuriescan be used effectively in developing guidelines and inproviding outreach and assistance on ergonomics toemployers, employees and stakeholders.C. Deletion of 29 CFR 1904.12 and Related ProvisionsHaving concluded that an MSD column on the Log isunnecessary, OSHA believes that section 1904.12should be deleted. The sole purpose of that sectionwas to establish the requirement for employers tocheck the MSD column for cases meeting the definitionof MSD. In view of this determination, it is notnecessary to consider whether the definition of MSDin Section 1904.12 would be appropriate if a columnwere needed, or whether alternative definitionswould be appropriate. The deletion of Section1904.12 relieves employers from the legal requirementto check the column; however, it has no effecton their obligation to record all cases meeting therequirements of Sections 1904.4–1904.7. In a relatedmatter, some of the privacy provisions of Part 1904relied upon the MSD definition from Section 1904.12.Specifically, paragraph 1904.29(b)(7)(vi) of the rulestates that employers must consider an illness caseto be a privacy concern case, and withhold theemployee’s name from the forms, if the employeeindependently and voluntarily requests that his orher name not be entered on the Log. The secondsentence of the paragraph states ‘’[m]usculoskeletaldisorders (MSDs) are not considered privacy concerncases.’’ Because Section 1904.12 is being deleted,there is no basis to implement the requirement inSection 1904.29(b)(7)(vi). Moreover, there was noexplanation for the special privacy treatment accordedMSDs in the preamble to the 2001 rule. Accordingly,OSHA is deleting the MSD requirement inSection 1904.29(b)(7)(vi) stating that MSD injuriesand illnesses are not to be considered privacy concerncases. These cases are covered by the generalrule on privacy cases. Therefore, when the employerhas categorized the case as an occupational illness,and the employee independently and voluntarilyrequests that his or her name not be entered on theOSHA 300 Log, the case will be considered a privacyconcern case.106OSHA RECORDKEEPINGHANDBOOK

Sections 1904.13 – 1904.28 ReservedSection 1904.29Forms(66 FR 6130, Jan. 19, 2001)REGULATION: Section 1904.29Subpart C – Recordkeeping forms and recording criteria(66 FR 6123, Jan. 19, 2001)§1904.29Note to Subpart C: This Subpart describes the work-related injuries and illnesses that an employer must enterinto the OSHA records and explains the OSHA forms that employers must use to record work-related fatalities,injuries, and illnesses.Section 1904.29 Forms(a) Basic requirement.You must use OSHA 300, 300-A, and 301 forms, orequivalent forms, for recordable injuries and illnesses.The OSHA 300 form is called the Log of Work-Related Injuries and Illnesses, the 300-A is theSummary of Work-Related Injuries and Illnesses, andthe OSHA 301 form is called the Injury and IllnessIncident Report.(b) Implementation.(1) What do I need to do to complete the OSHA300 Log?You must enter information about your businessat the top of the OSHA 300 Log, enter a one or twoline description for each recordable injury or illness,and summarize this information on the OSHA 300-Aat the end of the year.(2) What do I need to do to complete the OSHA301 Incident Report?You must complete an OSHA 301 Incident Reportform, or an equivalent form, for each recordableinjury or illness entered on the OSHA 300 Log.(3) How quickly must each injury or illness berecorded?You must enter each recordable injury or illnesson the OSHA 300 Log and 301 Incident Report withinseven (7) calendar days of receiving information thata recordable injury or illness has occurred.(4) What is an equivalent form?An equivalent form is one that has the same information,is as readable and understandable, and iscompleted using the same instructions as the OSHAform it replaces. Many employers use an insuranceform instead of the OSHA 301 Incident Report, orsupplement an insurance form by adding any additionalinformation required by OSHA.(5) May I keep my records on a computer?Yes, if the computer can produce equivalent formswhen they are needed, as described under Sections1904.35 and 1904.40, you may keep your recordsusing the computer system.(6) Are there situations where I do not put theemployee’s name on the forms for privacy reasons?Yes, if you have a “privacy concern case,” youmay not enter the employee’s name on the OSHA300 Log. Instead, enter “privacy case” in the spacenormally used for the employee’s name. This willprotect the privacy of the injured or ill employeewhen another employee, a former employee, or anauthorized employee representative is providedaccess to the OSHA 300 Log under Section1904.35(b)(2). You must keep a separate, confidentiallist of the case numbers and employee names foryour privacy concern cases so you can update thecases and provide the information to the governmentif asked to do so.(7) How do I determine if an injury or illness is aprivacy concern case?You must consider the following injuries or illnessesto be privacy concern cases:(i) An injury or illness to an intimate body part orthe reproductive system;(ii) An injury or illness resulting from a sexualassault;(iii) Mental illnesses;(iv) HIV infection, hepatitis, or tuberculosis;(v) Needlestick injuries and cuts from sharpobjects that are contaminated with another per-OSHA RECORDKEEPINGHANDBOOK107

§1904.29son’s blood or other potentially infectious material(see Section 1904.8 for definitions); and(vi) Other illnesses, if the employee independentlyand voluntarily requests that his or her namenot be entered on the log.(8) May I classify any other types of injuries andillnesses as privacy concern cases?No, this is a complete list of all injuries and illnessesconsidered privacy concern cases for Part1904 purposes.(9) If I have removed the employee’s name, but stillbelieve that the employee may be identified from theinformation on the forms, is there anything else that Ican do to further protect the employee’s privacy?Yes, if you have a reasonable basis to believe thatinformation describing the privacy concern case maybe personally identifiable even though the employee’sname has been omitted, you may use discretionin describing the injury or illness on both the OSHA300 and 301 forms. You must enter enough informationto identify the cause of the incident and the generalseverity of the injury or illness, but you do notneed to include details of an intimate or privatenature. For example, a sexual assault case could bedescribed as “injury from assault,” or an injury to areproductive organ could be described as “lowerabdominal injury.”(10) What must I do to protect employee privacyif I wish to provide access to the OSHA Forms 300and 301 to persons other than government representatives,employees, former employees or authorizedrepresentatives?If you decide to voluntarily disclose the Forms topersons other than government representatives,employees, former employees or authorized representatives(as required by Sections 1904.35 and1904.40), you must remove or hide the employees’names and other personally identifying information,except for the following cases. You may disclose theForms with personally identifying information only:(i) to an auditor or consultant hired by theemployer to evaluate the safety and health program;(ii) to the extent necessary for processing a claimfor workers’ compensation or other insurancebenefits; or(iii) to a public health authority or law enforcementagency for uses and disclosures for whichconsent, an authorization, or opportunity to agreeor object is not required under Department ofHealth and Human Services Standards for Privacyof Individually Identifiable Health Information, 45CFR 164.512.PREAMBLE DISCUSSION: Section 1904.29(66 FR 6022-6032, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.29 Forms.Section 1904.29, titled “Forms,” establishes therequirements for the forms (OSHA 300 Log, OSHA300A Annual Summary, and OSHA 301 IncidentReport) an employer must use to keep OSHA Part1904 injury and illness records, the time limit forrecording an injury or illness case, the use of substituteforms, the use of computer equipment to keepthe records, and privacy protections for certain informationrecorded on the OSHA 300 Log.Paragraph 1904.29(a) sets out the basic requirementsof this section. It directs the employer to usethe OSHA 300 (Log), 300A (Summary), and 301(Incident Report) forms, or equivalent forms, torecord all recordable occupational injuries and illnesses.Paragraph 1904.29(b) contains requirementsin the form of questions and answers to explain howemployers are to implement this basic requirement.Paragraph 1904.29(b)(1) states the requirements for:(1) Completing the establishment information at thetop of the OSHA 300 Log, (2) making a one- or twolineentry for each recordable injury and illness case,and (3) summarizing the data at the end of the year.Paragraph 1904.29(b)(2) sets out the requirements foremployers to complete the OSHA 301 Incident Reportform (or equivalent) for each recordable case enteredon the OSHA 300 Log. The requirements for completingthe annual summary on the Form 300A are foundat Section 1904.32 of the final rule.Required Forms...In addition to establishing the basic requirementsfor employers to keep records on the OSHA 300 Logand OSHA 301 Incident Report and providing basicinstructions on how to complete these forms, thissection of the rule states that employers may use108OSHA RECORDKEEPINGHANDBOOK

two lines of the OSHA 300 Log to describe an injuryor illness, if necessary....Deadline for Entering a CaseParagraph 1904.29(b)(3) establishes the requirementfor how quickly each recordable injury or illness mustbe recorded into the records. It states that theemployer must enter each case on the OSHA 300 Logand OSHA 301 Form within 7 calendar days of receivinginformation that a recordable injury or illness hasoccurred....[T]he Agency believes that the 7 calendar-dayrule will provide employers sufficient time to receiveinformation and record the case. In addition, a simple“within a week” rule will be easier for employers toremember and apply, and is consistent with OSHA’sdecision, in this rule, to move from workdays to calendardays whenever possible. The Agency believesthat 7 calendar days is ample time for recording, particularlysince the final rule, like the former rule,allows employers to revise an entry simply by liningit out or amending it if further information justifyingthe revision becomes available. The final rule doescontain one exception for the 7 day recording period:if an employee experiences a recordable hearingloss, and the employer elects to retest the employee’shearing within 30 days, the employer can wait for theresults of the retest before recording.Equivalent Forms and Computerized Records...[P]aragraphs 1904.29(b)(4) and (b)(5) of the finalrule make clear that employers are permitted torecord the required information on electronic mediaor on paper forms that are different from the OSHA300 Log, provided that the electronic record or paperforms are equivalent to the OSHA 300 Log. A form isdeemed to be “equivalent” to the OSHA 300 Log if itcan be read and understood as easily as the OSHAform and contains at least as much information asthe OSHA 300 Log. In addition, the equivalent formmust be completed in accordance with the instructionsused to complete the OSHA 300 Log. Theseprovisions are intended to balance OSHA’s obligation,as set forth in Section 8(d) of the OSH Act, toreduce information collection burdens on employersas much as possible, on the one hand, with the need,on the other hand, to maintain uniformity of the datarecorded and provide employers flexibility in meetingOSHA’s recordkeeping requirements. These provisionsalso help to achieve one of OSHA’s goals forthis rulemaking: to allow employers to take fulladvantage of modern technology and computers tomeet their OSHA recordkeeping obligations.......[P]aragraph Section 1904.29(b)(5) of the finalrule allows the employer to keep records on computerequipment only if the computer system can producepaper copies of equivalent forms when accessto them is needed by a government representative,an employee or former employee, or an employeerepresentative, as required by Section 1904.35 or1904.40, respectively. Of course, if the employeerequesting access to the information agrees toreceive it by e-mail, this is acceptable under the 1904rule....The final rule does not include a requirement thatcertain questions on an equivalent form be asked inthe same order and be phrased in language identicalto that used on the OSHA 301 form. Instead, OSHAhas decided, based on a review of the record evidence,that employers may use any substitute formthat contains the same information and follows thesame recording directions as the OSHA 301 form,and the final rule clearly allows this. Although theconsistency of the data on the OSHA 301 form mightbe improved somewhat if the questions asking forfurther details were phrased and positioned in anidentical way on all employers’ forms, OSHA hasconcluded that the additional burden such a requirementwould impose on employers and workers’compensation agencies outweighs this consideration.OSHA has revised the wording of these threequestions on the final OSHA 301 form to match thephraseology used by the Bureau of Labor Statistics(BLS) in its Annual Survey of Occupational Injuriesand Illnesses. By ensuring consistency across boththe BLS and OSHA forms, this change will help thoseemployers who respond both to the BLS AnnualSurvey and keep OSHA records.Handling of Privacy Concern CasesParagraph 1904.29(b)(6) requires the employer towithhold the injured or ill employee’s name from theOSHA 300 Log for injuries and illnesses defined bythe rule as “privacy concern cases” and instead toenter “privacy concern case” in the space where theemployee’s name would normally be entered if aninjury or illness meeting the definition of a privacyconcern case occurs. This approach will allow theemployer to provide OSHA 300 Log data to employees,former employees and employee representatives,as required by Section 1904.35, while at thesame time protecting the privacy of workers whohave experienced occupational injuries and illnessesthat raise privacy concerns. The employer must alsokeep a separate, confidential list of these privacy con-§1904.29OSHA RECORDKEEPINGHANDBOOK109

§1904.29cern cases, and the list must include the employee’sname and the case number from the OSHA 300 Log.This separate listing is needed to allow a governmentrepresentative to obtain the employee’s name duringa workplace inspection in case further investigation iswarranted and to assist employers to keep track ofsuch cases in the event that future revisions to theentry become necessary.Paragraph 1904.29(b)(7) defines “privacy concerncases” as those involving: (i) An injury or illness to anintimate body part or the reproductive system; (ii) aninjury or illness resulting from a sexual assault; (iii) amental illness; (iv) a work-related HIV infection, hepatitiscase, or tuberculosis case; (v) needlestickinjuries and cuts from sharp objects that are contaminatedwith another person’s blood or other potentiallyinfectious material, or (vi) any other illness, if theemployee independently and voluntarily requeststhat his or her name not be entered on the log.Paragraph 1904.29(b)(8) establishes that these are theonly types of occupational injuries and illnesses thatthe employer may consider privacy concern cases forrecordkeeping purposes.Paragraph 1904.29(b)(9) permits employers discretionin recording case information if the employerbelieves that doing so could compromise the privacyof the employee’s identity, even though the employee’sname has not been entered. This clause hasbeen added because OSHA recognizes that, for specificsituations, coworkers who are allowed to accessthe log may be able to deduce the identity of theinjured or ill worker and obtain inappropriate knowledgeof a privacy-sensitive injury or illness. OSHAbelieves that these situations are relatively infrequent,but still exist. For example, if knowing thedepartment in which the employee works wouldinadvertently divulge the person’s identity, or recordingthe gender of the injured employee would identifyingthat person because, for example, only onewoman works at the plant, the employer has discretionto mask or withhold this information both on theLog and Incident Report.The rule requires the employer to enter enoughinformation to identify the cause of the incident andthe general severity of the injury or illness, but allowsthe employer to exclude details of an intimate or privatenature. The rule includes two examples; a sexualassault case could be described simply as “injuryfrom assault,” or an injury to a reproductive organcould be described as “lower abdominal injury.”Likewise, a work-related diagnosis of post traumaticstress disorder could be described as “emotional difficulty.”Reproductive disorders, certain cancers, contagiousdiseases and other disorders that are intimateand private in nature may also be described ina general way to avoid privacy concerns. This allowsthe employer to avoid overly graphic descriptionsthat may be offensive, without sacrificing the descriptivevalue of the recorded information.Paragraph 1904.29(b)(10) protects employee privacyif the employer decides voluntarily to disclose theOSHA 300 and 301 forms to persons other than thosewho have a mandatory right of access under the finalrule. The paragraph requires the employer to removeor hide employees’ names or other personally identifyinginformation before disclosing the forms topersons other than government representatives,employees, former employees or authorized representatives,as required by paragraphs 1904.40 and1904.35, except in three cases. The employer maydisclose the forms, complete with personally identifyinginformation, [ ] only: (i) to an auditor or consultanthired by the employer to evaluate the safety andhealth program; (ii) to the extent necessary for processinga claim for workers’ compensation or otherinsurance benefits; or (iii) to a public health authorityor law enforcement agency for uses and disclosuresfor which consent, an authorization, or opportunity toagree or object is not required under section 164.512of the final rule on Standards for Privacy of IndividuallyIdentifiable Health Information, 45 CFR 164.512.These requirements have been included inSection 1904.29 rather than in Section 1904.35, whichestablishes requirements for records access, becausewaiting until access is requested to remove identifyinginformation from the OSHA 300 Log could unwittinglycompromise the injured or ill worker’s privacyand result in unnecessary delays. The final rule’soverall approach to handling privacy issues is discussedmore fully in the preamble discussion of theemployee access provisions in Section 1904.35.The Treatment of Occupational Illness and Injury Dataon the FormsThe treatment of occupational injury and illness dataon the OSHA forms is a key issue in this rulemaking.Although the forms themselves are not printed in theCode of Federal Regulations (CFR), they are themethod OSHA’s recordkeeping regulation uses tomeet the Agency’s goal of tracking and reportingoccupational injury and illness data. As such, theforms are a central component of the recordkeepingsystem and mirror the requirements of the Part 1904regulation. The final Part 1904 rule requires employersto use three forms to track occupational injuriesand illnesses: the OSHA 300, 300A, and 301 forms,110OSHA RECORDKEEPINGHANDBOOK

which replace the OSHA 200 and 101 forms called forunder the former recordkeeping rule, as follows:1. The OSHA Form 300, Log of Work-Related Injuriesand Illnesses, replaces the Log portion of the formerOSHA Form 200 Log and Summary of OccupationalInjuries and Illnesses. The OSHA 300 Log containsspace for a description of the establishment name,city and state, followed by a one-line space for theentry for each recordable injury and illness.2. The OSHA Form 300A, Summary of Work-RelatedInjuries and Illnesses, replaces the Summary portionof the former OSHA Form 200 Log and Summary ofOccupational Injuries and Illnesses. The Form 300A isused to summarize the entries from the Form 300Log at the end of the year and is then posted fromFebruary 1 through April 30 of the following year sothat employees can be aware of the occupationalinjury and illness experience of the establishment inwhich they work. The form contains space for entriesfor each of the columns from the Form 300, alongwith information about the establishment, and theaverage number of employees who worked there theprevious year, and the recordkeeper’s and corporateofficer’s certification of the accuracy of the datarecorded on the summary. (These requirements areaddressed further in Section 1904.32 of the final ruleand its associated preamble.)3. The OSHA Form 301, Injury and Illness Report,replaces the former OSHA 101 Form. Coveredemployers are required to fill out a one-page formfor each injury and illness recorded on the Form 300.The form contains space for more detailed informationabout the injured or ill employee, the physicianor other health care professional who cared for theemployee (if medical treatment was necessary), thetreatment (if any) of the employee at an emergencyroom or hospital, and descriptive information tellingwhat the employee was doing when injured or ill,how the incident occurred, the specific details of theinjury or illness, and the object or substance thatharmed the employee. (Most employers use a workers’compensation form as a replacement for theOSHA 301 Incident Report.)The use of a three-form system for recordkeepingis not a new concept. The OSHA recordkeeping systemused a separate summary form from 1972 to1977, when the Log and Summary forms were combinedinto the former OSHA Form 200 (42 FR 65165).OSHA has decided that the three-form system (the300 Log, the 300A summary, and the 301 IncidentReport) has several advantages. First, it providesspace for more cases to be entered on the Log butkeeps the Log to a manageable size. Second, it helpsto ensure that an injured or ill employee’s name isnot posted in a public place. When the forms werecombined in 1977 into a single form, employersoccasionally neglected to shield an employee’s nameon the final sheet of the 200 Log, even though theannual summary form was designed to mask personalidentifiers. The use of a separate 300A summaryform precludes this possibility. Third, the use of aseparate summary form (the final rule’s Form 300A)allows the data to be posted in a user-friendly formatthat will be easy for employees and employers touse. Fourth, a separate 300A Form provides extraspace for information about an employee’s right toaccess the Log, information about the establishmentand its employees, and the dual certificationsrequired by Section 1904.32 of the rule. Finally, a separate300A Form makes it easier to attach to thereverse side of the form worksheets that aredesigned to help the employer calculate the averagenumber of employees and hours worked by allemployees during the year.The forms have been incorporated into an informationpackage that provides individual employerswith several copies of the OSHA 300, 300A, and 301forms; general instructions for filling out the formsand definitions of key terms; an example showinghow to fill out the 300 Log; a worksheet to assistemployers in computing the average number ofemployees and the total number of hours worked byemployees at the establishment in the previous year;a non-mandatory worksheet to help the employercompute an occupational injury and illness rate; andinstructions telling an employer how to get additionalhelp by (1) accessing the OSHA Internet home page,or (2) by calling the appropriate Federal OSHAregional office or the OSHA approved State-Plan withjurisdiction. The package is included in final ruleSection VI, Forms, later in this preamble.The Size of the OSHA Recordkeeping FormsThe OSHA recordkeeping forms required by the finalPart 1904 recordkeeping rule are printed on legal sizepaper (81/2” x 14”)....Accordingly, OSHA has redesigned the OSHA 300Log to fit on a legal size (81/2 x 14 inches) piece ofpaper and to clarify that employers may use twolines to enter a case if the information does not fiteasily on one line. The OSHA forms 300A and 301,and the remainder of the recordkeeping package,§1904.29OSHA RECORDKEEPINGHANDBOOK111

§1904.29have also been designed to fit on the same-sizepaper as the OSHA 300 Log. For those employerswho use computerized systems (where handwritingspace is not as important) equivalent computer-generatedforms can be printed out on 81/2 x 11 sheets ofpaper if the printed copies are legible and are asreadable as the OSHA forms....Defining Lost WorkdaysOSHA proposed to eliminate the term “lost workdays,”by replacing it with “days away from work”(61 FR 4033). The OSHA recordkeeping system hashistorically defined lost workdays as including bothdays away from work and days of restricted workactivity, and the Recordkeeping Guidelines discussedhow to properly record lost workday cases with daysaway from work and lost workday cases with days ofrestricted work activity (Ex. 2, p. 47, 48). However,many use the term “lost workday” in a manner thatis synonymous with “day away from work,” and theterm has been used inconsistently for many years....In the final rule, OSHA has eliminated the term“lost workdays” on the forms and in the regulatorytext. The use of the term has been confusing formany years because many people equated the terms“lost workday” with “days away from work” andfailed to recognize that the former OSHA term includedrestricted days. OSHA finds that deleting this termfrom the final rule and the forms will improve clarityand the consistency of the data.The 300 Log has four check boxes to be used toclassify the case: death, day(s) away from work,day(s) of restricted work or job transfer; and casemeeting other recording criteria. The employer mustcheck the single box that reflects the most severeoutcome associated with a given injury or illness.Thus, for an injury or illness where the injured workerfirst stayed home to recuperate and then wasassigned to restricted work for several days, theemployer is required only to check the box for daysaway from work (column I). For a case with only jobtransfer or restriction, the employer must check thebox for days of restricted work or job transfer(Column H). However, the final Log still allowsemployers to calculate the incidence rate formerlyreferred to as a “lost workday injury and illness rate”despite the fact that it separates the data formerlycaptured under this heading into two separate categories.Because the OSHA Form 300 has separatecheck boxes for days away from work cases andcases where the employee remained at work but wastemporarily transferred to another job or assigned torestricted duty, it is easy to add the totals from thesetwo columns together to obtain a single total to usein calculating an injury and illness incidence rate fortotal days away from work and restricted work cases.Counting Days of Restricted Work or Job TransferAlthough the final rule does not use the term “lostworkday” (which formerly applied both to days awayfrom work and days of restricted or transferredwork), the rule continues OSHA’s longstanding practiceof requiring employers to keep track of the numberof days on which an employee is placed onrestricted work or is on job transfer because of aninjury or illness....In the final rule, OSHA has decided to requireemployers to record the number of days of restrictionor transfer on the OSHA 300 Log. From the commentsreceived, and based on OSHA’s own experience,the Agency finds that counts of restricted daysare a useful and needed measure of injury and illnessseverity. OSHA’s decision to require the recordingof restricted and transferred work cases on theLog was also influenced by the trend toward restrictedwork and away from days away from work....The final rule thus carries forward OSHA’s longstandingrequirement for employers to count andrecord the number of restricted days on the OSHALog. On the Log, restricted work counts are separatedfrom days away from work counts, and the term“lost workday” is no longer used. OSHA believesthat the burden on employers of counting these dayswill be reduced somewhat by the simplified definitionof restricted work, the counting of calendar daysrather than work days, capping of the counts at 180days, and allowing the employer to stop countingrestricted days when the employees job has beenpermanently modified to eliminate the routine jobfunctions being restricted (see the PreambleDiscussion for 1904.7 General Recording Criteria).Separate 300 Log Data on Occupational Injury andOccupational Illness...After a thorough review of the comments in therecord...OSHA has concluded that the proposedapproach, which would have eliminated, for recordingpurposes, the distinction between work-relatedinjuries and illnesses, is not workable in the final rule.The Agency finds that there is a continuing need forseparately identifiable information on occupationalillnesses and injuries, as well as on certain specificcategories of occupational illnesses. The publishedBLS statistics have included separate estimates of therate and number of occupational injuries and illnessesfor many years, as well as the rate and number of112OSHA RECORDKEEPINGHANDBOOK

different types of occupational illnesses, and employers,employees, the government, and the public havefound this information useful and worthwhile.Separate illness and injury data are particularly usefulat the establishment level, where employers andemployees can use them to evaluate the establishment’shealth experience and compare it to thenational experience or to the experience of otheremployers in their industry or their own prior experience.The data are also useful to OSHA personnelperforming worksite inspections, who can use thisinformation to identify potential health hazards at theestablishment.Under the final rule, the OSHA 300 form hastherefore been modified specifically to collect informationon [four] types of occupational health conditions:...skindiseases or disorders, respiratory conditions,poisoning, and hearing loss. There is also an“all other illness” column on the Log. To recordcases falling into one of these categories, theemployer simply enters a check mark in the appropriatecolumn, which will allow these cases to be separatelycounted to generate establishment-level summaryinformation at the end of the year....In the final rule, two of the illness case columns onthe OSHA 300 Log are identical to those on the formerOSHA Log: a column to capture cases of skin diseasesor disorders and one to capture cases of systemicpoisoning. The single column for respiratoryconditions on the new OSHA Form 300 will capturedata on respiratory conditions that were formerly capturedin two separate columns, i.e., the columns forrespiratory conditions due to toxic agents (formerlycolumn 7c) and for dust diseases of the lungs (formerlycolumn 7b). Column 7g of the former OSHALog provided space for data on all other occupationalillnesses, and that column has also been continuedon the new OSHA 300 Log. On the other hand, column7e from the former OSHA Log, which capturedcases of disorders due to physical agents, is notincluded on the new OSHA Log form. The casesrecorded in former column 7e primarily addressedheat and cold disorders, such as heat stroke andhypothermia; hyperbaric effects, such as caisson disease;and the effects of radiation, including occupationalillnesses caused by x-ray exposure, sun exposureand welder’s flash. Because space on the form isat a premium, and because column 7e was not usedextensively in the past (recorded column 7e casesaccounted only for approximately five percent of alloccupational illness cases), OSHA has not continuedthis column on the new OSHA 300 Log.OSHA has, however, added a new column specificallyto capture hearing loss cases on the OSHA 300Log. The former Log included a column devoted torepeated trauma cases, which were defined asincluding noise-induced hearing loss cases as well ascases involving a variety of other conditions, includingcertain musculoskeletal disorders. Dedicating acolumn to occupational hearing loss cases will providea valuable new source of information on thisprevalent and often disabling condition. Althoughprecise estimates of the number of noise-exposedworkers vary widely by industry and the definition ofnoise dose used, the EPA estimated in 1981 thatabout 9 million workers in the manufacturing sectoralone were occupationally exposed to noise levelsabove 85 dBA. Recent risk estimates suggest thatexposure to this level of noise over a working lifetimewould cause material hearing impairment inabout 9 percent, or approximately 720,000, U.S.workers (NIOSH, 1998). A separate column for occupationalhearing loss is also appropriate because theBLS occupational injury and illness statistics onlyreport detailed injury characteristics information forthose illness cases that result in days away fromwork. Because most hearing loss cases do not resultin time off the job, the extent of occupational hearingloss has not previously been accurately reflected inthe national statistics. By creating a separate columnfor occupational hearing loss cases, and clearly articulatingin section 1904.10 of the final rule the level ofhearing loss that must be recorded, OSHA believesthat the recordkeeping system will, in the future, provideaccurate estimates of the incidence of workrelatedloss of hearing among America’s workers....[In the June 30, 2003 Federal Register (Vol. 68, No.125, page 38606), OSHA concluded that the MSDScolumn on the log was unnecessary, and Section1904.12 was deleted.][In the December 17, 2002, Federal Register (Vol. 67,No. 242, page 77169), OSHA delayed Section1904.10(b)(7) requirements for the hearing loss columnuntil January 1, 2004.]Miscellaneous 300 Form Issues...OSHA has not added the fields or columns suggestedby commenters to the final 300 or 301 formsbecause the available space on the form has beenallocated to other data that OSHA considers morevaluable. In addition, there is no requirement in thefinal rule for employers to enter any part of anemployee’s social security number because of thespecial privacy concerns that would be associated§1904.29OSHA RECORDKEEPINGHANDBOOK113

§1904.29with that entry and employee access to the forms.However, employers are, of course, free to collectadditional data on occupational injury and illnessbeyond the data required by the Agency’s Part 1904regulation.The OSHA 301 FormAlthough the final OSHA 300 Log presents informationon injuries and illnesses in a condensed format,the final OSHA 301 Incident Record allows space foremployers to provide more detailed informationabout the affected worker, the injury or illness, theworkplace factors associated with the accident, and abrief description of how the injury or illness occurred.Many employers use an equivalent workers’ compensationform or internal reporting form for the purposeof recording more detailed information on eachcase, and this practice is allowed under paragraph1904.29(b)(4) of the final rule.The OSHA Form 301 differs in several ways fromthe former OSHA 101 form it replaces, althoughmuch of the information is the same as the informationon the former 101 Form, although it has beenreworded and reformatted for clarity and simplicity.The final Form 301 does not require the followingdata items that were included on the former OSHA101 to be recorded:• The employer name and address;• Employee social security number;• Employee occupation;• Department where employee normally works;• Place of accident;• Whether the accident occurred on the employer’spremises; and• Name and address of hospital.OSHA’s reasons for deleting these data items fromthe final 301 form is that most are included on theOSHA Form 300 and are therefore not necessary onthe 301 form. Eliminating duplicate informationbetween the two forms decreases the redundancy ofthe data collected and the burden on employers ofrecording the data twice. The employee social securitynumber has been removed for privacy reasons.OSHA believes that the information found in severalother data fields on the 301 Form (e.g., the employee’sname, address, and date of birth) provides sufficientinformation to identify injured or ill individualswhile protecting the confidentiality of social securitynumbers.OSHA has also added several items to the OSHAForm 301 that were not on the former OSHA No. 101:• The date the employee was hired;• The time the employee began work;• The time the event occurred;• Whether the employee was treated at an emergencyroom; and• Whether the employee was hospitalized overnightas an in-patient (the form now requires a check boxentry rather than the name and address of the hospital)....Rewording of the Proposed Case Detail Questions(questions 9, 10, 16, 17 and 18)...As discussed above, final Form 301 no longerrequires the employer to include these questions onany equivalent form in the same format or languageas that used by the OSHA 301 form....The final form solicits information only on theobject or substance that directly harmed the employee.The final 301 form contains four questions elicitingcase detail information (i.e., what was theemployee doing just before the incident occurred?,what happened?, what was the injury or illness?,and what object or substance directly harmed theemployee?). The language of these questions onthe final 301 form has been modified slightly fromthat used in the proposed questions to be consistentwith the language used on the BLS Survey ofOccupational Injuries and Illnesses collection form.The BLS performed extensive testing of the languageused in these questions while developing its surveyform and has subsequently used these questions tocollect data for many years. The BLS has found thatthe order in which these questions are presented andthe wording of the questions on the survey form elicitthe most complete answers to the relevant questions.OSHA believes that using the time-tested languageand ordering of these four questions will havethe same benefits for employers using the OSHAForm 301 as they have had for employers respondingto the BLS Annual Survey. Matching the BLS wordingand order will also result in benefits for thoseemployers selected to participate in the BLS AnnualSurvey. To complete the BLS survey forms, employerswill only need to copy information from theOSHA Injury and Illness Incident Report to the BLSsurvey form. This should be easier and less confusingthan researching and rewording responses to thequestions on two separate forms.The Data Fields OSHA Proposed to Change on theProposed 301 Form...OSHA continues to believe that the data gatheredby means of the “date hired” field will have value foranalyzing occupational injury and illness data andhas therefore included this data field on the final114OSHA RECORDKEEPINGHANDBOOK

OSHA 301 form. These data are useful for analyzingthe incidence of occupational injury and illnessamong newly hired workers and those with longertenure. OSHA is aware that the data collected are nota perfect measure of job experience because, forexample, an employee may have years of experiencedoing the same type of work for a previous employer,and that prior experience will not be captured bythis data field. Another case where this data fieldmay fail to capture perfect data could occur in thecase of an employee who has worked for the sameemployer for many years but was only recently reassignedto new duties. Despite cases such as these,inclusion of this data field on the Form 301 will allowthe Agency to collect valid data on length of time onthe job for most employment situations.For the relatively infrequent situation whereemployees are hired, terminated, and then rehired,the employer can, at his or her discretion, enter thedate the employee was originally hired, or the date ofrehire....OSHA has decided to continue to collect informationon final Form 301 concerning the treatment providedto the employee (proposed data field 7).OSHA’s experience indicates that employers have notgenerally had difficulty in providing this information,either in the longshoring or any other industry. Thedata in this field is particularly useful to an OSHAinspector needing additional information about themedical condition of injured or ill employees. (OSHAdoes not request this medical information withoutfirst obtaining a medical access order under the provisionsof 29 CFR part 1913, Rules Concerning OSHAAccess to Employee Medical Records.) The finalOSHA 301 Form therefore includes a data field forinformation on the off-site treating facility.The final 301 Form also includes a data fieldrequesting the name of the health care professionalseen by the injured or ill employee. The employermay enter the name either of the physician or otherhealth care professional who provided the initialtreatment or the off-site treatment. If OSHA needsadditional data on this point, the records of thehealth are professional listed will include both thename of the referring physician or other health careprofessional as well as the name of the health careprofessional to whom the employee was referred forspecialized treatment....OSHA has included on the final 301 form the twoquestions asking for data on the time of the eventand the time the employee began work so thatemployers, employees and the government canobtain information on the role fatigue plays in occupationalinjuries and illness. Both questions (i.e., ontime of event and time employee began work) mustbe included to conduct this analysis. Thus, OSHA hasincluded both fields on the final Form 301. In addition,the form has been designed so that the employercan simply circle the a.m. or p.m. designation....The final OSHA Form 301 permits the employer toinclude the name and title in either field, as long asthe information is available. As to the phone number,the employer may use whatever number is appropriatethat would allow a government representativeaccessing the data to contact the individual who preparedthe form....OSHA continues to believe that easy linkage ofthe Forms 300 and 301 will be beneficial to all usersof these data. Thus, the final Form 301 contains aspace for the case file number. The file/case numberis required on both forms to allow persons reviewingthe forms to match an individual OSHA Form 301with a specific entry on the OSHA Form 300. Accessby authorized employee representatives to the informationcontained on the OSHA Form 301 is limitedto the information on the right side of the form (seeSection 1904.35(b)(2)(v)(B) of the final rule). Thecase/file number is the data element that makes alink to the OSHA Form 300 possible. OSHA believesthat this requirement will add very little burden to therecordkeeping process, because the OSHA Log hasalways required a unique file or case number. Thefinal Form 301 requirement simply requires theemployer to place the same number on the OSHA301 form....SummaryThe final forms employers will use to keep therecords of those occupational injuries and illnessesrequired by the final rule to be recorded have beenrevised to reflect the changes made to the final rule,the record evidence gathered in the course of thisrulemaking, and a number of changes designed tosimplify recordkeeping for employers. In addition,the forms have been revised to facilitate the use ofequivalent forms and employers’ ability to computerizetheir records.§1904.29OSHA RECORDKEEPINGHANDBOOK115

FREQUENTLY ASKED QUESTIONS: Section 1904.29 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.29 Forms§1904.29Question 29-1. How do I determine whether or not acase is an occupational injury or one of the occupationalillness categories in Section M of the OSHA300 Log?The instructions that accompany the OSHA 300 Logcontain examples of occupational injuries and thevarious types of occupational illnesses listed on theLog. If the case you are dealing with is on one ofthose lists, then check that injury or illness category.If the case you are dealing with is not listed, then youmay check the injury or illness category that youbelieve best fits the circumstances of the case.Question 29-2. Does the employer decide if an injuryor illness is a privacy concern case?Yes. The employer must decide if a case is a privacyconcern case, using 1904.29(b)(7), which lists the sixtypes of injuries and illnesses the employer mustconsider privacy concern cases. If the case meetsany of these criteria, the employer must consider it aprivacy concern case. This is a complete list of allinjury and illnesses considered privacy concerncases.Question 29-3. Under paragraph 1904.29(b)(9), theemployer may use some discretion in describing aprivacy concern case on the log so the employeecannot be identified. Can the employer also leave offthe job title, date, or where the event occurred?Yes. OSHA believes that this would be an unusualcircumstance and that leaving this information offthe log will rarely be needed. However, if theemployer has reason to believe that the employee’sname can be identified through this information,these fields can be left blank.Question 29-4. May employers attach missing informationto their accident investigation or workers’compensation forms to make them an acceptablesubstitute form for the OSHA 301 for recordkeepingpurposes?Yes, the employer may use a workers’ compensationform or other form that does not contain all therequired information, provided the form is supplementedto contain the missing information and thesupplemented form is as readable and understandableas the OSHA 301 form and is completed usingthe same instructions as the OSHA 301 form.Question 29-5. If an employee reports an injury orillness and receives medical treatment this year, butstates that the symptoms first arose at some unspecifieddate last year, on which year’s log do Irecord the case?Ordinarily, the case should be recorded on the Logfor the year in which the injury or illness occurred.Where the date of injury or illness cannot be determined,the date the employee reported the symptomsor received treatment must be used. In the casein question, the injury or illness would be recordedon this year’s Log because the employee cannotspecify the date when the symptoms occurred.Question 29-6. Since the new system proposes todo away with the distinction between injuries andillnesses, is there guidance on how to classify casesto complete column M on the OSHA 300 Log?An injury or illness is an abnormal condition or disorder.Employers should look at the examples ofinjuries and illnesses in the "Classifying Injuries andClassifying Illnesses" section of the RecordkeepingForms Package for guidance. If still unsure about theclassification, employers could use the longstandingdistinction between injuries that result from instantaneousevents or those from exposures in the workenvironment. Cases resulting from anything otherthan an instantaneous event or exposure are consideredillnesses.116OSHA RECORDKEEPINGHANDBOOK

LETTERS OF INTERPRETATION: Section 1904.29Section 1904.29 FormsOSHA requirements are set by statute, standards and regulations. Letters of interpretation explainthese requirements and how they apply to particular circumstances, but they cannot create additionalemployer obligations. These letters constitute OSHA’s interpretation of the requirements discussed.Note that OSHA enforcement guidance may be affected by changes to OSHA rules. Also, from time totime we update our guidance in response to new information. To keep apprised of such developments,you can consult OSHA’s website at http://www.osha.gov.Letters of Interpretation constitute OSHA’s interpretation only of the requirements discussed and maynot be applicable to any situation not delineated within the original correspondence.§1904.29Letter of interpretation related to sections 1904.26(b)(6), 1904.29(b)(10), 1904.32(a)(4) and 1904.32(b)(6) –Posting requirements for the OSHA 300 Log and OSHA 300-A Summary Form.December 18, 2003Ms. Alana GreerAmerican Civil Liberties Union of Florida4500 Biscayne Boulevard, Suite 340Miami, FL 33137-3227Dear Ms. Greer:This is in response to your letter dated July 9, 2003. Please excuse the delay in our response. Thankyou for your comments pertaining to the Occupational Safety and Health Administration’s (OSHA)Injury and Illness Recording and Reporting requirements contained in 29 CFR Part 1904. You state thatyour office has received several complaints regarding the medical privacy of employees regarding therecordkeeping requirements. Specifically, you ask OSHA to clarify the appropriateness of posting theentire OSHA 300 form (the Log of Work-Related Injuries and Illnesses) at the employer’s establishment.You are correct in your understanding that, while employers are required to complete both OSHAForm 300 Log of Work-Related Injuries and Illnesses and OSHA Form 300-A Summary of Work-Related Injuries and Illnesses, only the latter, Form 300-A, is required to be posted in the workplace.Despite the fact that only the Summary Form 300-A is required to be posted, some employers apparentlyhave posted both the Form 300 and Form 300-A in the workplace. You suggest that further clarificationis needed with the recordkeeping forms or elsewhere, making clear to employers that the Form300 should not be posted along with the Summary Form 300-A.The instructions that accompany the OSHA recordkeeping forms do include the following Question andAnswer: “When must you post the Summary? You must post the Summary only--not the Log--by February1 of the year following the year covered by the form and keep it posted until April 30 of that year.”We will take additional steps to emphasize the distinction between the Form 300 and the Form 300-Aand the fact that only the latter is required to be posted in the workplace, through News Releases thatwe issue that remind employers of the posting requirement, and including this issue under theFrequently Asked Questions on the Recordkeeping Section of our website. Your assistance in also makingemployers aware of this distinction is appreciated.I do want to make one further point of clarification. While our rules do not require the Form 300 to beposted (and we will attempt to communicate that more clearly, as described above), the regulation alsodoes not prohibit an employer from posting the Form 300 along with the Form 300-A. However, if theemployer does choose to post the full Form 300 Log, they should post the Log in an area only accessible by those granted access under the rule (i.e., employees, former employees, employee representatives,and an authorized employee representative). If the posting area is accessible by others (e.g., members ofthe public) the employer must remove or hide all names of the injured or ill employees as set out inOSHA RECORDKEEPINGHANDBOOK117

Section 1904.29(b)(10). In addition, 1910.29 prohibits the employer from including the employee’sname for “privacy concern” cases whenever the Form 300 Log is made available to coworkers, formeremployees, or employee representatives.§1904.29Thank you for your interest in occupational safety and health. We hope you find this informationhelpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation lettersexplain these requirements and how they apply to particular circumstances, but they cannot createadditional employer obligations. This letter constitutes OSHA’s interpretation of the requirements discussed.Note that our enforcement guidance may be affected by changes to OSHA rules. Also, fromtime to time we update our guidance in response to new information. To keep appraised of suchdevelopments, you can consult OSHA’s website at http://www.osha.gov. If you have any further questions,please contact the Division of Recordkeeping Requirements, at 202-693-1702.Sincerely,John L. HenshawAssistant SecretaryLetter of interpretation related to sections 1904.29, 1904.29(a), 1904.29(b), 1904.29(b)(2), 1904.31, 1904.33,1904.35, 1904.40 and 1904.46 –Recording criteria for cases involving workers from a temporary help service, employee leasing service, or personnelsupply service.June 23, 2003Mr. Edwin G. Foulke, Jr.Jackson Lewis LLP2100 Landmark Building301 North Main StreetGreenville, SC 29601-2122Dear Mr. Foulke:Thank you for your April 3, 2003 facsimile and April 10, 2003 letter to the Occupational Safetyand Health Administration (OSHA) regarding the Injury and Illness Recording and ReportingRequirements contained in 29 CFR Part 1904. Specifically, you ask OSHA to clarify the recordingcriteria for cases involving workers from a temporary help service, employee leasing service, orpersonnel supply service. Your questions have been outlined below followed by OSHA’s response.Question 1: Under 29 CFR Section 1904.31, employers who supervise temporary or leasedemployees at their facility are required to maintain the OSHA 300 Logs for those employees. Withrespect to those injuries, can the employer keep a separate 300 Log for the company employeesand one log for the temporary or leased employees?Response: The log is to be kept for an establishment. Under Section 1904.46 Definitions, an establishmentis a single physical location where business is conducted or where services or industrialoperations are performed. The controlling employer (using firm) may sub-divide the OSHA 300Log to provide separate listings of temporary workers, but must consider the separate listings to beone record for all recordkeeping purposes, including access by government representatives, employees,former employees and employee representatives as required by Section 1904.35 and 1904.40in the Recordkeeping regulation.OSHA’s view is that a given establishment should have one OSHA Log. Injuries and illnesses for allthe covered employees at the establishment are then entered into that record to create a singleOSHA 300-A Summary form at the end of the year.118OSHA RECORDKEEPINGHANDBOOK

Question 2: Under 29 CFR Section 1904.31, while the standard clearly indicates the 300 Logsmust be maintained for supervised temporary or leased employees, it does not indicate who maintainsthe 301 documents or the first report of injuries, as well as the medical records on thoseemployees. Also, if a temporary or leased employee has days away from work, it is normally thetemporary or leased employee provider’s contractual responsibility to handle the medical treatmentof the employee. The temporary or leased employee provider is the only person/entity to have theinformation on days away from work. Who is responsible for maintaining the 301 logs or the firstreport of injury forms as well as the medical records for these employees, assuming that theemployee provider can produce the required documents to the employer for production in the timeperiods set forth in the standard?Response: Section 1904.29(a) says: “You must use OSHA 300, 300-A and 301 forms, or equivalentforms, for recordable injuries and illnesses.” In addition, 1904.29(b)(2) says: “You must completean OSHA 301 Incident Report form, or an equivalent form, for each recordable injury or illnessentered on the OSHA 300 Log.” Therefore, when the workers from a temporary help serviceor leasing firm are under the day-to-day supervision of the controlling party (using firm) the entireOSHA injury and illness recordkeeping responsibility belongs to the using firm.§1904.29Question 3: Using the facts in Question 2, it is also important to note that an injured temporary orleased employee, who requires days from work, may be replaced by another leased or temporaryemployee at the work site. From time of the injury, the employer has no information about thereturn to work status of the injured employee. In fact, the injured employee may be assigned toanother employer once he or she is able to return to work. How can the original employer keepaccurate 300 Logs when the employee provider has sole access to information on days away fromwork and return to work status?Response: The controlling employer has the ultimate responsibility for making good-faith recordkeepingdeterminations regarding an injury and illness to any of those temporary employees theysupervise on a day-to-day basis. Although controlling employers ultimately decide if and how aparticular case should be recorded, their decision must not be an arbitrary one, but should bemade in accordance with the requirements of the Act, regulation, and the instructions on theforms. Therefore, the controlling employer must make reasonable efforts to acquire the necessaryinformation in order to satisfy its Part 1904 recordkeeping requirements. However, if the controllingemployer is not able to obtain information from the employer of the leased or temporaryemployee, the controlling employer should record the injury based on whatever information isavailable to the controlling employer. The preamble contains a brief reference about OSHA’sexpectation that the employers share information to produce accurate records, stating that “thetwo employers have shared responsibilities and may share information when there is a need to doso.” (Federal Register p. 6041)Finally, the last question you raised is whether your client or contractor has any requirementsunder the recordkeeping standard to provide the new contractor the current OSHA 300 Logs forthat facility covering those employees who now work for that contractor. Since there was nochange of your client’s business ownership, he or she needs only to retain the records as per1904.33 and provide access under 1904.35 and 1904.40.Thank you for your interest in occupational safety and health. We hope you find this informationhelpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation lettersexplain these requirements and how they apply to particular circumstances, but they cannotcreate additional employer obligations. This letter constitutes OSHA’s interpretation of the requirementsdiscussed. Note that our enforcement guidance may be affected by changes to OSHA rules.Also, from time to time we update our guidance in response to new information. To keepappraised of such developments, you can consult OSHA’s website at http://www.osha.gov. If youhave any further questions, please contact the Division of Recordkeeping Requirements, at 202-693-1702.Sincerely,John L. HenshawAssistant SecretaryOSHA RECORDKEEPINGHANDBOOK119

Section 1904.30Multiple business establishments(66 FR 6130, Jan. 19, 2001)REGULATION: Section 1904.30Subpart D – Other OSHA injury and illness recordkeeping requirements(66 FR 6123, Jan. 19, 2001)§1904.30Section 1904.30 Multiple business establishments(a) Basic requirement.You must keep a separate OSHA 300 Log for eachestablishment that is expected to be in operation forone year or longer.(b) Implementation.(1) Do I need to keep OSHA injury and illnessrecords for short-term establishments (i.e., establishmentsthat will exist for less than a year)?Yes, however, you do not have to keep a separateOSHA 300 Log for each such establishment. You maykeep one OSHA 300 Log that covers all of your shorttermestablishments. You may also include the shorttermestablishments’ recordable injuries and illnesseson an OSHA 300 Log that covers short-term establishmentsfor individual company divisions or geographicregions.(2) May I keep the records for all of my establishmentsat my headquarters location or at some othercentral location?Yes, you may keep the records for an establishmentat your headquarters or other central location ifyou can:(i) Transmit information about the injuries and illnessesfrom the establishment to the central locationwithin seven (7) calendar days of receivinginformation that a recordable injury or illness hasoccurred; and(ii) Produce and send the records from the centrallocation to the establishment within the timeframes required by Section 1904.35 and Section1904.40 when you are required to provide recordsto a government representative, employees, formeremployees or employee representatives.(3) Some of my employees work at several differentlocations or do not work at any of my establishmentsat all. How do I record cases for these employees?You must link each of your employees with one ofyour establishments, for recordkeeping purposes.You must record the injury and illness on the OSHA300 Log of the injured or ill employee’s establishment,or on an OSHA 300 Log that covers thatemployee’s short-term establishment.(4) How do I record an injury or illness when anemployee of one of my establishments is injured orbecomes ill while visiting or working at another ofmy establishments, or while working away from anyof my establishments?If the injury or illness occurs at one of your establishments,you must record the injury or illness onthe OSHA 300 Log of the establishment at which theinjury or illness occurred. If the employee is injuredor becomes ill and is not at one of your establishments,you must record the case on the OSHA 300Log at the establishment at which the employee normallyworks.PREAMBLE DISCUSSION: Section 1904.30(66 FR 6035-6037, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.30 Multiple establishments.Section 1904.30 covers the procedures for recordinginjuries and illnesses occurring in separate establishmentsoperated by the same business. ...[T]his sectionapplies to businesses where separate work sitescreate confusion as to where injury and illnessrecords should be kept and when separate recordsmust be kept for separate work locations, or establishments.OSHA recognizes that the recordkeepingsystem must accommodate operations of this type,120OSHA RECORDKEEPINGHANDBOOK

and has adopted language in the final rule to providesome flexibility for employers in the construction,transportation, communications, electric and gas utility,and sanitary services industries, as well as otheremployers with geographically dispersed operations.The final rule provides, in part, that operations arenot considered separate establishments unless theycontinue to be in operation for a year or more....In the final rule, the definition of establishment isincluded in Subpart G, Definitions.The basic requirement of Section 1904.30(a) ofthis final rule states that employers are required tokeep separate OSHA 300 Logs for each establishmentthat is expected to be in business for one year orlonger. Paragraph 1904.30(b)(1) states that for shorttermestablishments, i.e., those that will exist for lessthan a year, employers are required to keep injuryand illness records, but are not required to keep separateOSHA 300 Logs. They may keep one OSHA 300Log covering all short-term establishments, or mayinclude the short-term establishment records in logsthat cover individual company divisions or geographicregions. For example, a construction company withmulti-state operations might have separate OSHA300 Logs for each state to show the injuries and illnessesof its employees engaged in short-term projects,as well as a separate OSHA 300 Log for eachconstruction project expected to last for more thanone year. If the same company had only one officelocation and none of its projects lasted for more thanone year, the company would only be required tohave one OSHA 300 Log.Paragraph 1904.30(b)(2) allows the employer tokeep records for separate establishments at the business’headquarters or another central location, providedthat information can be transmitted from theestablishment to headquarters or the central locationwithin 7 days of the occurrence of the injury or illness,and provided that the employer is able to produceand send the OSHA records to each establishmentwhen Section 1904.35 or Section 1904.40requires such transmission....Paragraph 1904.30(b)(3) states that each employeemust be linked, for recordkeeping purposes, with oneof the employer’s establishments. Any injuries or illnessessustained by the employee must be recordedon his or her home establishment’s OSHA 300 Log,or on a general OSHA 300 Log for short-term establishments.This provision ensures that all employeesare included in a company’s records. If the establishmentis in an industry classification partially exemptedunder Section 1904.2 of the final rule, records arenot required. Under paragraph 1904.30(b)(4), if anemployee is injured or made ill while visiting orworking at another of the employer’s establishments,then the injury or illness must be recorded on the300 Log of the establishment at which the injury orillness occurred.How Long Must an Establishment Exist to Have aSeparate OSHA Log...[T]he final rule provides that an establishment mustbe one that is expected to exist for a year or longerbefore a separate OSHA log is required. Employersare permitted to keep separate OSHA logs for shorterterm establishments if they wish to do so, but therule does not require them to do so.......Sections 1904.30(b)(1) and (b)(3) have beenadded to make it clear that records (but not a separatelog) must be kept for short-term establishmentslasting less than one year, and that each employeemust be linked to an establishment....Centralized Recordkeeping...OSHA does not believe that centralization of therecords will compromise timely employee or governmentrepresentative access to the records. To ensurethat this is the case, centralization under Section1904.30(b)(2) is allowed only if the employer can producecopies of the forms when access to them isneeded by a government representative, an employeeor former employee, or an employee representative,as required by Sections 1904.35 and 40.Recording Injuries and Illnesses Where They Occur...For the vast majority of cases, the place where theinjury or illness occurred is the most useful recordinglocation. The events or exposures that caused thecase are most likely to be present at that location, sothe data are most useful for analysis of that location’srecords. If the case is recorded at the employee’shome base, the injury or illness data have been disconnectedfrom the place where the case occurred,and where analysis of the data may help reveal aworkplace hazard. Therefore, OSHA finds that it ismost useful to record the injury or illness at the locationwhere the case occurred. Of course, if the injuryor illness occurs at another employer’s workplace, orwhile the employee is in transit, the case would berecorded on the OSHA 300 Log of the employee’shome establishment.For cases of illness, two types of cases must beconsidered. The first is the case of an illness conditioncaused by an acute, or short term workplaceexposure, such as skin rashes, respiratory ailments,and heat disorders. These illnesses generally mani-§1904.30OSHA RECORDKEEPINGHANDBOOK121

fest themselves quickly and can be linked to theworkplace where they occur, which is no differentthan most injury cases. For illnesses that are causedby long-term exposures or which have long latencyperiods, the illness will most likely be detected duringa visit to a physician or other health care professional,and the employee is most likely to report it tohis or her supervisor at the home work location.Recording these injuries and illnesses couldpotentially present a problem with incidence rate calculations.In many situations, visiting employees area minority of the workforce, their hours worked arerelatively inconsequential, and rates are thus unaffectedto any meaningful extent. However, if anemployer relies on visiting labor to perform a largeramount of the work, rates could be affected. In thesesituations, the hours of these personnel should beadded to the establishment’s hours of work for ratecalculation purposes.§1904.30FREQUENTLY ASKED QUESTIONS: Section 1904.30 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.30 Multiple business establishmentsThis section will be developed as letters of interpretation become available.LETTERS OF INTERPRETATION: Section 1904.30Section 1904.30 Multiple business establishmentsThis section will be developed as letters of interpretation become available.122OSHA RECORDKEEPINGHANDBOOK

Section 1904.31Covered employees(66 FR 6131, Jan. 19, 2001)REGULATION: Section 1904.31Subpart D – Other OSHA injury and illness recordkeeping requirements(66 FR 6130, Jan. 19, 2001)Section 1904.31 Covered employees(a) Basic requirement.You must record on the OSHA 300 Log the recordableinjuries and illnesses of all employees on yourpayroll, whether they are labor, executive, hourly,salary, part-time, seasonal, or migrant workers. Youalso must record the recordable injuries and illnessesthat occur to employees who are not onyour payroll if you supervise these employees on aday-to-day basis. If your business is organized as asole proprietorship or partnership, the owner orpartners are not considered employees for recordkeepingpurposes.(b) Implementation.(1) If a self-employed person is injured or becomesill while doing work at my business, do I needto record the injury or illness?No, self-employed individuals are not covered bythe OSH Act or this regulation.(2) If I obtain employees from a temporary helpservice, employee leasing service, or personnel supplyservice, do I have to record an injury or illnessoccurring to one of those employees?You must record these injuries and illnesses if yousupervise these employees on a day-to-day basis.(3) If an employee in my establishment is a contractor’semployee, must I record an injury or illnessoccurring to that employee?If the contractor’s employee is under the day-todaysupervision of the contractor, the contractor isresponsible for recording the injury or illness. If yousupervise the contractor employee’s work on a dayto-daybasis, you must record the injury or illness.(4) Must the personnel supply service, temporaryhelp service, employee leasing service, or contractoralso record the injuries or illnesses occurring to temporary,leased or contract employees that I superviseon a day-to-day basis?No, you and the temporary help service, employeeleasing service, personnel supply service, or contractorshould coordinate your efforts to make surethat each injury and illness is recorded only once:either on your OSHA 300 Log (if you provide day-todaysupervision) or on the other employer’s OSHA300 Log (if that company provides day-to-day supervision).§1904.31PREAMBLE DISCUSSION: Section 1904.31(66 FR 6037-6042, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.31 Covered employees.Final Rule Requirements and Legal BackgroundSection 1904.31 requires employers to record theinjuries and illnesses of all their employees, whetherclassified as labor, executive, hourly, salaried, parttime,seasonal, or migrant workers. The section alsorequires the employer to record the injuries and illnessesof employees they supervise on a day-to-daybasis, even if these workers are not carried on theemployer’s payroll.Implementing these requirements requires anunderstanding of the Act’s definitions of “employer”and “employee.” The statute defines “employer,” inrelevant part, to mean “a person engaged in a businessaffecting interstate commerce who has employees.”29 U.S.C. 652(5). The term “person” includes“one or more individuals, partnerships, associations,corporations, business trusts, legal representatives,or any organized group of persons.” 29 U.S.C. 652(4).OSHA RECORDKEEPINGHANDBOOK123

§1904.31The term “employee” means “an employee of anemployer who is employed in a business of hisemployer which affects interstate commerce.” 29U.S.C. 652(6). Thus, any individual or entity havingan employment relationship with even one worker isan employer for purposes of this final rule, and mustfulfill the recording requirements for each employee.The application of the coverage principles in thissection presents few issues for employees who arecarried on the employer’s payroll, because theemployment relationship is usually well establishedin these cases. However, issues sometimes arisewhen an individual or entity enters into a temporaryrelationship with a worker. The first question iswhether the worker is an employee of the hiringparty. If an employment relationship exists, even iftemporary in duration, the employee’s injuries and illnessesmust be recorded on the OSHA 300 Log and301 form. The second question, arising in connectionwith employees provided by a temporary help serviceor leasing agency, is which employer--the hostfirm or the temporary help service--is responsible forrecordkeeping.Whether an employment relationship exists underthe Act is determined in accordance with establishedcommon law principles of agency. At common law, aself-employed “independent contractor” is not anemployee; therefore, injuries and illnesses sustainedby independent contractors are not recordable underthe final Recordkeeping rule. To determine whether ahired party is an employee or an independent contractorunder the common law test, the hiring partymust consider a number of factors, including thedegree of control the hiring party asserts over themanner in which the work is done, and the degree ofskill and independent judgment the hired party isexpected to apply....Other individuals, besides independent contractors,who are not considered to be employees underthe OSH Act are unpaid volunteers, sole proprietors,partners, family members of farm employers, anddomestic workers in a residential setting. See 29 CFRSection 1975.4(b)(2) and Section 1975.6 for a discussionof the latter two categories of workers. As is thecase with independent contractors, no employmentrelationship exists between these individuals and thehiring party, and consequently, no recording obligationarises.A related coverage question sometimes ariseswhen an employer obtains labor from a temporaryhelp service, employee leasing firm or other personnelsupply service. Frequently the temporary workersare on the payroll of the temporary help service orleasing firm, but are under the day-to-day supervisionof the host party. In these cases, Section 1904.31places the recordkeeping obligation upon the host, orutilizing, employer. The final rule’s allocation ofrecordkeeping responsibility to the host employer inthese circumstances is consistent with the Act forseveral reasons.First, the host employer’s exercise of day-to-daysupervision of the temporary workers and its controlover the work environment demonstrates a highdegree of control over the temporary workers consistentwith the presence of an employment relationshipat common law. See Loomis Cabinet Co., 20 F.3dat 942. Thus, the temporary workers will ordinarily bethe employees of the party exercising day-to-daycontrol over them, and the supervising party will betheir employer.Even if daily supervision is not sufficient alone toestablish that the host party is the employer of thetemporary workers, there are other reasons for thefinal rule’s allocation of recordkeeping responsibility.Under the OSH Act, an employer’s duties andresponsibilities are not limited only to his ownemployees. Cf. Universal Constr. Co. v. OSHRC, 182F.3d 726, 728-731 (10th Cir. 1999). Assuming that thehost is an employer under the Act (because it has anemployment relationship with someone) it reasonablyshould record the injuries of all employees,whether or not its own, that it supervises on a dailybasis. This follows because the supervising employeris in the best position to obtain the necessary injuryand illness information due to its control over theworksite and its familiarity with the work tasks andthe work environment.......[T]he proposal did not alter the long-standingmeanings of the terms employee, employer oremployment relationship. The day-to-day supervisiontest for identifying the employer who is responsiblefor compliance with Part 1904 is a continuation ofOSHA’s former policy, and is consistent with the commonlaw test. The comments indicate that manyemployers are not aware that they need to keeprecords for leased workers, temporary workers, andworkers who are inaccurately labeled “independentcontractors” but are in fact employees. However,these workers are employees under both the formerrule and the final rule. Incorporating these requirementsinto the regulatory text can only help toimprove the consistency of the data by clarifying theemployer’s responsibilities.The 1904 rule does not require an employer torecord injuries and illnesses that occur to workerssupervised by independent contractors. However, the124OSHA RECORDKEEPINGHANDBOOK

label assigned to a worker is immaterial if it does notreflect the economic realities of the relationship. Forexample, an employment contract that labels a hiredworker as an independent contractor will have nolegal significance for Part 1904 purposes if in fact thehiring employer exercises day-to-day supervisionover that worker, including directing the worker as tothe manner in which the details of the work are to beperformed. If the contractor actually provides day-todaysupervision for the employee, then the contractoris responsible for compliance with Part 1904 as tothat employee....OSHA has rejected the suggestions that either thepayroll or workers’ compensation employer keep theOSHA 1904 records. The Agency believes that in themajority of circumstances the payroll employer willalso be the workers’ compensation employer andthere is no difference in the two suggestions.Temporary help services typically provide the workers’compensation insurance coverage for theemployees they provide to other employers.Therefore, our reasons for rejecting these suggestionsare the same. OSHA agrees that there are goodarguments for both scenarios: 1. Including injuriesand illnesses in the records of the leasing employer(the payroll or workers’ compensation employer and2. For including these cases in the records of the controllingemployer. Requiring the payroll or workers’compensation employer to keep the OSHA recordswould certainly be a simple and objective method.There would be no doubt about who keeps therecords. However, including the cases in the recordsof the temporary help agency erodes the value of theinjury and illness records for statistical purposes, foradministering safety and health programs at individualworksites, and for government inspectors conductingsafety and health inspections or consultations.The benefits of simplification and clarity do notoutweigh the potential damage to the informationalvalue of the records, for the reasons discussedbelow.First, the employer who controls the workers andthe work environment is in the best position to learnabout all the injuries and illnesses that occur to thoseworkers. Second, when the data are collected forenforcement and research use and for priority setting,the injury and illness data are clearly linked tothe industrial setting that gave rise to them. Mostimportant, transferring the recording/reporting functionfrom the supervising employer to the leasingfirm would undermine rather than facilitate one ofthe most important goals of Part 1904--to assure thatwork-related injury and illness information gets tothe employer who can use it to abate work-relatedhazards. If OSHA were to shift the recordkeepingresponsibility from the controlling employer to theleasing firm, the records would not be readily availableto the employer who can make best use ofthem. OSHA would need to require the leasing firmto provide the controlling employer with copies ofthe injury and illness logs and other reports to meetthis purpose. This would be both burdensome andduplicative.Requiring the controlling (host) employer torecord injuries and illnesses for employees that theycontrol has several advantages. First, it assigns theinjuries and illnesses to the individual workplace withthe greatest amount of control over the working conditionsthat led to the worker’s injury or illness.Although both the host employer and the payrollemployer have safety and health responsibilities, thehost employer generally has more control over thesafety and health conditions where the employee isworking. To the extent that the records connect theoccupational injuries and illnesses to the workingconditions in a given workplace, the host employermust include these cases to provide a full and accuratesafety and health record for that workplace.If this policy were not in place, industry-wide statisticswould be skewed. Two workplaces with identicalnumbers of injuries and illnesses would reportdifferent statistics if one relied on temporary helpservices to provide workers, while the other did not.Under OSHA’s policy, when records are collected togenerate national injury and illness statistics, thecases are properly assigned to the industry wherethey occurred. Assigning these injuries and illnessesto temporary help services would not accuratelyreflect the type of workplace that produced theinjuries and illnesses. It would also be more difficultto compare industries. To illustrate this point, considera hypothetical industry that relies on temporaryhelp services to provide 10% of its labor force.Assuming that the temporary workers experienceworkplace injury and illness at the same rate as traditionalemployees, the Nation’s statistics would underrepresentthat industry’s injury and illness numbersby 10%. If another industry only used temporary helpservices for 1% of the labor force, its statistics wouldbe closer to the real number, but comparisons to the10% industry would be highly suspect.The policy also makes it easier to use an industry’sdata to measure differences that occur in thatindustry over time. Over the last 20 years, the businesscommunity has relied increasingly on workersfrom temporary help services, employee leasing§1904.31OSHA RECORDKEEPINGHANDBOOK125

§1904.31companies, and other temporary employees. If anindustry sector as a whole changed its practices toinclude either more or fewer temporary workers overtime, comparisons of the statistics over several yearsmight show trends in injury and illness experiencethat simply reflected changing business practicesrather than real changes in safety and health conditions....OSHA agrees with these commenters that there isa potential for double counting of injuries and illnessesfor workers provided by a personnel supply service.We do not intend to require both employers torecord each injury or illness. To solve this problem,the rule, at Section 1904.31(b)(4), specifically statesthat both employers are not required to record thecase, and that the employers may coordinate theirefforts so that each case is recorded only once--bythe employer who provides day-to-day supervision.When the employers involved choose to work witheach other, or when both employers understand thePart 1904 regulations as to who is required to recordthe cases and who is not, there will not be duplicativerecording and reporting....OSHA believes that many employers alreadyshare information about these injuries and illnessesto help each other with their own respective safetyand health responsibilities. For example, personnelservice employers need information to process workers’compensation claims and to determine how welltheir safety and health efforts are working, especiallythose involving training and the use of personal protectiveequipment. The host employer needs informationon conditions in the workplace that may havecaused the injuries or illnesses.......The personnel leasing firm will not necessarilyhave better information than the host employerabout the worker’s exposures or accidents in previousassignments, previously recorded injuries or illnesses,or the aftermath of an injury or illness. Andthe personnel leasing firm will certainly have lessknowledge of and control over the work environmentthat may have caused, contributed to, or significantlyaggravated an injury or illness. As described above,the two employers have shared responsibilities andmay share information when there is a need to doso.If Part 1904 records are inaccurate due to lack ofreasonably reliable data about leased employees,there are ways for OSHA to address the problem.First, the OSH Act does not impose absolutely strictliability on employers. The controlling employermust make reasonable efforts to acquire necessaryinformation in order to satisfy Part 1904, but may beable to show that it is not feasible to comply with anOSHA recordkeeping requirement. If entries for temporaryworkers are deficient in some way, the employercan always defend against citation by showingthat it made the efforts that a reasonable employerwould have made under the particular circumstancesto obtain more complete or accurate data....OSHA has decided not to base recording obligationson the temporary employee’s length of employment.Recording the injuries and illnesses of sometemporary employees and not others would notimprove the value or accuracy of the statistics, andwould make the system even more inconsistent andcomplex. In OSHA’s view, the duration of the relationshipis much less important than the element of control.In the example of the temporary nurse’s aide, forOSHA recordkeeping purposes the worker would beconsidered an employee of the facility for the dayshe or she works under the day-to-day supervision ofthe host facility....Because OSHA is using the common law conceptsto determine which workers are to be included in therecords, a worker who is covered in terms of recordingan injury or illness is also covered for countingpurposes and for the annual summary. If a givenworker is an employee under the common law test,he or she is an employee for all OSHA recordkeepingpurposes. Therefore, an employer must consider allof its employees when determining its eligibility forthe small employer exemption, and must providereasonable estimates for hours worked and averageemployment on the annual summary. OSHA hasincluded instructions on the back of the annual summaryto help with these calculations.... OSHA’s view is that a given establishmentshould have one OSHA Log and only one Log.Injuries and illnesses for all the employees at theestablishment are entered into that record to create asingle summary at the end of the year. OSHA doesnot require temporary workers or any other types ofworkers to be identified with special titles in the jobtitle column, but also does not prohibit the practice.This column is used to list the occupation of theinjured or ill worker, such as laborer, machine operator,or nursing aide. However, OSHA does encourageemployers to analyze their injury and illness data toimprove safety and health at the establishment. Insome cases, identifying temporary or contract workersmay help an employer to manage safety andhealth more effectively. Thus an employer may supplementthe OSHA Log to identify temporary or contractworkers, although the rule does not require it....126OSHA RECORDKEEPINGHANDBOOK

These workers should be evaluated just as anyother worker. If a student or intern is working as anunpaid volunteer, he or she would not be an employeeunder the OSH Act and an injury or illness of thatemployee would not be entered into the Part 1904records. If the worker is receiving compensation forservices, and meets the common law test discussedearlier, then there is an employer-employee relationshipfor the purposes of OSHA recordkeeping. Theemployer in that relationship must evaluate anyinjury or illness at the establishment and enter it intothe records if it meets the recording criteria.FREQUENTLY ASKED QUESTIONS: Section 1904.31 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.31 Covered employeesQuestion 31-1. How is the term “supervised” in section1904.31 defined for the purpose of determiningwhether the host employer must record the workrelatedinjuries and illnesses of employees obtainedfrom a temporary help service?Question 31-2. If a temporary personnel agencysends its employees to work in an establishmentthat is not required to keep OSHA records, does theagency have to record the recordable injuries and illnessesof these employees?The host employer must record the recordableinjuries and illnesses of employees not on its payrollif it supervises them on a day-to-day basis. Day-todaysupervision occurs when “in addition to specifyingthe output, product or result to be accomplishedby the person’s work, the employer supervises thedetails, means, methods and processes by which thework is to be accomplished.”A temporary personnel agency need not recordinjuries and illnesses of those employees that aresupervised on a day-to-day basis by another employer.The temporary personnel agency must record therecordable injuries and illnesses of those employeesit supervises on a day to day basis, even if theseemployees perform work for an employer who is notcovered by the recordkeeping rule.§1904.31LETTERS OF INTERPRETATION: Section 1904.31Section 1904.31 Covered employeesOSHA requirements are set by statute, standards and regulations. Letters of interpretation explainthese requirements and how they apply to particular circumstances, but they cannot create additionalemployer obligations. These letters constitute OSHA’s interpretation of the requirements discussed.Note that OSHA enforcement guidance may be affected by changes to OSHA rules. Also, from time totime we update our guidance in response to new information. To keep apprised of such developments,you can consult OSHA’s website at http://www.osha.gov.Letters of Interpretation constitute OSHA’s interpretation only of the requirements discussed and maynot be applicable to any situation not delineated within the original correspondence.OSHA RECORDKEEPINGHANDBOOK127

Letter of interpretation related to sections 1904.5, 1904.5(a), 1904.5(b)(2), 1904.6, 1904.6(a), 1904.7 and1904.31 –Evaluation of seven scenarios for work-relatedness and recordkeeping requirements.January 15, 2004Ms. Leann M. Johnson-Koch1200 Nineteenth Street, N.W.Washington, D.C. 20036-2412Dear Ms. Johnson-Koch:§1904.31Thank you for your E-mail to the Occupational Safety and Health Administration (OSHA) regardingthe Injury and Illness Recording and Reporting Requirements contained in 29 CFR Part 1904.Your letter was forwarded to my office by Richard Fairfax, Director, Directorate of EnforcementPrograms. The Division of Recordkeeping Requirements is responsible for the administration of theOSHA injury and illness recordkeeping system nationwide. Please excuse the delay in responding toyour request.In your letter, you ask OSHA to clarify the following scenarios to ensure accurate and consistentguidance to your members for purposes of OSHA Recordkeeping requirements. I will address yourscenarios by first restating each one and then answering it.Scenario 1:• An employee reported to work at 7:00 a.m.• At 12:15 p.m. the employee reported that his toes on his left foot had started swelling and hisfoot had started hurting.• The employee wanted to go to a doctor for evaluation.• On the First Report of Injury, that the employee completed before he went to the doctor, theemployee indicated that the cause of the illness was “unknown (feet wet at cooling tower).”• When answering the doctor’s question: “How did injury occur?” the employee answered that theonly thing he could think of was that his feet were wet all the previous day due to work in themorning at a cooling tower. The cooling tower water is treated to remove bacteria and then used inprocess operations in the plant.• The doctor described the illness/injury as foot edema/cellulitis.• The doctor also prescribed the injury as an occupational disease, prescribed an antibiotic, and theemployee missed one day of work.• The company sent the employee to a second doctor who said to continue using the antibiotic.• Neither doctor could state conclusively that the foot edema/cellulitis was or was not due to theemployee’s feet being wet due to work at the cooling tower.• Neither doctor is a specialist in skin disorders.• During an incident review at the site, the employee again said he did not know if his feet beingwet all day the previous day caused the injury/illness.• The employee also stated that he had not worn the personal protective equipment, rubber boots,prescribed for this task.The company determined that this injury/illness is not work-related (did not occur in the course ofor as a result of employment), since neither physician nor the employee can state with certainty thatthe injury/illness was caused by the employee’s feet being wet all day due to work at the coolingtower. Since the injury/illness was determined to not be work-related, then the company deemed theincident non-recordable.128OSHA RECORDKEEPINGHANDBOOK

Response: A case is work-related if it is more likely than not that an event or exposure in the workenvironment was a cause of the injury or illness. The work event or exposure need only be one ofthe causes; it not need to be the sole or predominant cause. In this case, the fact that neither thephysician nor the employee could state with certainty that the employee’s edema was caused byworking with wet feet is not dispositive. The physician’s description of the edema as an “occupationaldisease,” and the employee’s statement that working with wet feet was “the only thing hecould of” as the cause, indicate that it is more likely than not that working with wet feet was acause. The case should be recorded on the OSHA 300 Log.Scenario 2:An employee must report to work by 8:00 a.m.• The employee drove into the company parking lot at 7:30 a.m. and parked the car.• The employee exited the car and proceeded to the office to report to work.• The parking lot and sidewalks are privately owned by the facility and both are within the propertyline, but not the controlled access points (i.e., fence, guards).• The employee stepped onto the sidewalk and slipped on the snow and ice.• The employee suffered a back injury and missed multiple days of work.The company believes that the employee was still in the process of the commute to work since theemployee had not yet checked in at the office. Since a work task was not being performed, the sitepersonnel deemed the incident not work-related and therefore not recordable.Response: Company parking lots and sidewalks are part of the employer’s establishment for recordkeepingpurposes. Here, the employee slipped on an icy sidewalk while walking to the office toreport for work. In addition, the event or exposure that occurred does not meet any of the workrelatedexceptions contained in 1904.5(b)(2). The employee was on the sidewalk because of work;therefore, the case is work-related regardless of the fact that he had not actually checked in.Scenario 3:The employee described in Scenario 2 missed 31 days of work due to the back injury.• On day 31, the doctor provided a release for returning to work.• The next morning (day 32), when the employee was due to report to work, the employee statedthat his back was hurting, and the employee did not report to work.• The employee scheduled a doctor’s appointment, with the same doctor, and visited the doctor onday 33.• The doctor issued a statement stating that the employee was not able to return to work.Since the employee was released to return to work, the company does not believe it has to count theintervening two days on the OSHA log.§1904.31Response: The employer would have to enter the additional days away from work on the OSHA300 log based on receiving information from the physician or other licensed health care professionalthat the employee was unable to work.Scenario 4:• An employee reports to work.• Several hours later, the employee goes outside for a “smoke break.”• The employee slips on the ice and injures his back.Since the employee was not performing a task related to the employee’s work, the company hasdeemed this incident non-work related and therefore not recordable.Response: Under Section 1904.5(b)(2)(v), an injury or illness is not work-related if it is solely theresult of an employee doing personal tasks (unrelated to their employment) at the establishment outsideof the employee’s assigned working hours. In order for this exception to apply, the case mustmeet both of the stated conditions. The exception does not apply here because the injury or illnessoccurred within normal working hours. Therefore, your case in question is work-related, and if itmeets the general recording criteria under Section 1904.7 the case must be recorded.OSHA RECORDKEEPINGHANDBOOK129

Scenario 5:• An employee drives into the company parking lot at 7:30 a.m., exits his car, and proceeds tocross the parking lot to clock-in to work.• A second employee, also on the way to work, approaches the first employee, and the two individualsget into a physical altercation in the parking lot. The first employee breaks an arm during thealtercation.• The employee goes to the doctor and receives medical treatment for his injury.The company deems this non-work related, and therefore non-recordable, since the employees hadnot yet reported to work and a work task was not being performed at the time of the altercation.Response: The recordkeeping regulation contains no general exception for purposes of determiningwork-relationship for cases involving acts of violence in the work environment. Company parkinglots/access roads are part of the employer’s premises and therefore part of the employer’s establishment.Whether the employee had not clocked in to work does not affect the outcome for determiningwork-relatedness. The case is recordable on the OSHA log, because the injury meets the generalrecording criteria contained in Section 1904.7.§1904.31Scenario 6:• An employee injured a knee performing work-related activities in 2001.• The accident was OSHA recordable and subject to worker’s compensation.• The employee had arthroscopic knee surgery eleven months later and was released to full duty amonth and a half after the arthroscopic surgery.• The employee had a second knee injury three months after the return to work release (after thefirst surgery).• Post-surgery (second surgery), the doctor prescribed Vioxx® as an anti-inflammatory.• Approximately one and one-half months after the second knee surgery, the employee was givenanother full release to return to work full duty and returned to work.• However, the doctor told the employee to continue to take Vioxx® as prescribed (as needed) andto return to the doctor as needed.• The employee scheduled a follow-up appointment with the doctor.• The day before the appointment, the employee bumped his knee at work.• During his scheduled doctor’s appointment (was to be the last follow-up visit) the employee mentionedthe latest incident (bumping the knee) to the doctor and showed him where the pain wasoccurring due to bumping his knee.• The doctor stated that the employee had an inflamed tendon (Grade 1 lateral collateral ligamentsprain) that was not part of the initial surgery (patellar tendonitis).• The doctor stated in the diagnosis that the original injury that required knee surgery was resolved.• The doctor told the employee to continue taking Vioxx® for the inflamed tendon.Since the employee was already taking the medication prescribed (Vioxx®), the site does not believethis is recordable as a second incident.Response: In the recordkeeping regulation, the employer is required to follow any determination aphysician or other licensed health care professional has made about the status of a new case. Theinflamed tendon is a new case because the employee had completely recovered from the previousinjury and illness and a new event or exposure had occurred in the work environment. Therefore,for purposes of OSHA recordkeeping, the employer would enter the case on the OSHA 300 log asappropriate.Scenario 7:• A site hired numerous temporary workers at its plant.• Three temporary workers were injured.• They each received injuries that were recordable on the OSHA 300 Log.• The employees were under the direct supervision of the site.Is it correct that these injuries were recordable on the site log or should they have been recordableon the temp agency log? What are the criteria related to temporary workers that need to bereviewed to determine which OSHA log is appropriate for recording the injury/illness?130OSHA RECORDKEEPINGHANDBOOK

Response: Section 1904.31 states that the employer must record the injuries and illnesses that occurto employees not on its payroll if it supervises them on a day-to-day basis. Day-to-day supervisiongenerally exists when the employer “supervises not only the output, product, or result to be accomplishedby the person’s work, but also the details, means, methods, and processes by which thework objective is accomplished.”Thank you for your interest in occupational safety and health. We hope you find this informationhelpful. OSHA requirements are set by statute, standards and regulations. Our interpretation lettersexplain these requirements and how they apply to particular circumstances, but they cannot createadditional employer obligations. This letter constitutes OSHA’s interpretation of the requirementsdiscussed. Note that our enforcement guidance may be affected by changes to OSHA rules. In addition,from time to time we update our guidance in response to new information. To keep appraisedof such developments, you can consult OSHA’s website at http://www.osha.gov. If you have any furtherquestions, please contact the Division of Recordkeeping Requirements, at 202-693-1702.Sincerely,Frank FrodymaActing Director§1904.31Letter of interpretation related to sections 1904.29, 1904.29(a), 1904.29(b), 1904.29(b)(2), 1904.31, 1904.33,1904.35, 1904.40 and 1904.46 –Recording criteria for cases involving workers from a temporary help service, employee leasing service, orpersonnel supply service.June 23, 2003Mr. Edwin G. Foulke, Jr.Jackson Lewis LLP2100 Landmark Building301 North Main StreetGreenville, SC 29601-2122Dear Mr. Foulke:Thank you for your April 3, 2003 facsimile and April 10, 2003 letter to the Occupational Safetyand Health Administration (OSHA) regarding the Injury and Illness Recording and ReportingRequirements contained in 29 CFR Part 1904. Specifically, you ask OSHA to clarify the recordingcriteria for cases involving workers from a temporary help service, employee leasing service, or personnelsupply service. Your questions have been outlined below followed by OSHA’s response.Question 1: Under 29 CFR Section 1904.31, employers who supervise temporary or leased employeesat their facility are required to maintain the OSHA 300 Logs for those employees. With respectto those injuries, can the employer keep a separate 300 Log for the company employees and onelog for the temporary or leased employees?OSHA RECORDKEEPINGHANDBOOK131

Response: The log is to be kept for an establishment. Under Section 1904.46 Definitions, an establishmentis a single physical location where business is conducted or where services or industrialoperations are performed. The controlling employer (using firm) may sub-divide the OSHA 300Log to provide separate listings of temporary workers, but must consider the separate listings to beone record for all recordkeeping purposes, including access by government representatives, employees,former employees and employee representatives as required by Section 1904.35 and 1904.40 inthe Recordkeeping regulation. OSHA’s view is that a given establishment should have one OSHALog. Injuries and illnesses for all the covered employees at the establishment are then entered intothat record to create a single OSHA 300-A Summary form at the end of the year.Question 2: Under 29 CFR Section 1904.31, while the standard clearly indicates the 300 Logs mustbe maintained for supervised temporary or leased employees, it does not indicate who maintains the301 documents or the first report of injuries, as well as the medical records on those employees.Also, if a temporary or leased employee has days away from work, it is normally the temporary orleased employee provider’s contractual responsibility to handle the medical treatment of theemployee. The temporary or leased employee provider is the only person/entity to have the informationon days away from work. Who is responsible for maintaining the 301 logs or the firstreport of injury forms as well as the medical records for these employees, assuming that theemployee provider can produce the required documents to the employer for production in the timeperiods set forth in the standard?§1904.31Response: Section 1904.29(a) says: “You must use OSHA 300, 300-A and 301 forms, or equivalentforms, for recordable injuries and illnesses.” In addition, 1904.29(b)(2) says: “You must completean OSHA 301 Incident Report form, or an equivalent form, for each recordable injury or illnessentered on the OSHA 300 Log.” Therefore, when the workers from a temporary help service orleasing firm are under the day-to-day supervision of the controlling party (using firm) the entireOSHA injury and illness recordkeeping responsibility belongs to the using firm.Question 3: Using the facts in Question 2, it is also important to note that an injured temporary orleased employee, who requires days from work, may be replaced by another leased or temporaryemployee at the work site. From time of the injury, the employer has no information about thereturn to work status of the injured employee. In fact, the injured employee may be assigned toanother employer once he or she is able to return to work. How can the original employer keepaccurate 300 Logs when the employee provider has sole access to information on days away fromwork and return to work status?Response: The controlling employer has the ultimate responsibility for making good-faith recordkeepingdeterminations regarding an injury and illness to any of those temporary employees theysupervise on a day-to-day basis. Although controlling employers ultimately decide if and how a particularcase should be recorded, their decision must not be an arbitrary one, but should be made inaccordance with the requirements of the Act, regulation, and the instructions on the forms.Therefore, the controlling employer must make reasonable efforts to acquire the necessary informationin order to satisfy its Part 1904 recordkeeping requirements. However, if the controllingemployer is not able to obtain information from the employer of the leased or temporary employee,the controlling employer should record the injury based on whatever information is available to thecontrolling employer. The preamble contains a brief reference about OSHA’s expectation that theemployers share information to produce accurate records, stating that “the two employers haveshared responsibilities and may share information when there is a need to do so.” (Federal Registerp. 6041)Finally, the last question you raised is whether your client or contractor has any requirements underthe recordkeeping standard to provide the new contractor the current OSHA 300 Logs for thatfacility covering those employees who now work for that contractor? Since there was no change ofyour client’s business ownership, he or she needs only to retain the records as per 1904.33 and provideaccess under 1904.35 and 1904.40.132OSHA RECORDKEEPINGHANDBOOK

Thank you for your interest in occupational safety and health. We hope you find this informationhelpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation lettersexplain these requirements and how they apply to particular circumstances, but they cannotcreate additional employer obligations. This letter constitutes OSHA’s interpretation of the requirementsdiscussed. Note that our enforcement guidance may be affected by changes to OSHA rules.Also, from time to time we update our guidance in response to new information. To keep appraisedof such developments, you can consult OSHA’s website at http://www.osha.gov. If you have anyfurther questions, please contact the Division of Recordkeeping Requirements, at 202-693-1702.Sincerely,John L. HenshawAssistant Secretary§1904.31OSHA RECORDKEEPINGHANDBOOK133

Section 1904.32Annual summary(66 FR 6131, Jan. 19, 2001)REGULATION: Section 1904.32Subpart D – Other OSHA injury and illness recordkeeping requirements(66 FR 6130, Jan. 19, 2001)§1904.32(a) Basic requirement.At the end of each calendar year, you must:(1) Review the OSHA 300 Log to verify that theentries are complete and accurate, and correct anydeficiencies identified;(2) Create an annual summary of injuries and illnessesrecorded on the OSHA 300 Log;(3) Certify the summary; and(4) Post the annual summary.(b) Implementation.(1) How extensively do I have to review theOSHA 300 Log entries at the end of the year?You must review the entries as extensively as necessaryto make sure that they are complete and correct.(2) How do I complete the annual summary?You must:(i) Total the columns on the OSHA 300 Log (if youhad no recordable cases, enter zeros for each columntotal); and(ii) Enter the calendar year covered, the company’sname, establishment name, establishmentaddress, annual average number of employeescovered by the OSHA 300 Log, and the total hoursworked by all employees covered by the OSHA300 Log.(iii) If you are using an equivalent form other thanthe OSHA 300-A summary form, as permittedunder Section 1904.6(b)(4), the summary you usemust also include the employee access andemployer penalty statements found on the OSHA300-A Summary form.(3) How do I certify the annual summary?A company executive must certify that he or shehas examined the OSHA 300 Log and that he or shereasonably believes, based on his or her knowledgeof the process by which the information was recorded,that the annual summary is correct and complete.(4) Who is considered a company executive?The company executive who certifies the log mustbe one of the following persons:(i) An owner of the company (only if the companyis a sole proprietorship or partnership);(ii) An officer of the corporation;(iii) The highest ranking company official workingat the establishment; or(iv) The immediate supervisor of the highest rankingcompany official working at the establishment.(5) How do I post the annual summary?You must post a copy of the annual summary ineach establishment in a conspicuous place or placeswhere notices to employees are customarily posted.You must ensure that the posted annual summary isnot altered, defaced or covered by other material.(6) When do I have to post the annual summary?You must post the summary no later than February1 of the year following the year covered by therecords and keep the posting in place until April 30.PREAMBLE DISCUSSION: Section 1904.32(66 FR 6042-6048, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.32 Annual summary.At the end of each calendar year, section 1904.32 ofthe final rule requires each covered employer toreview his or her OSHA 300 Log for completenessand accuracy and to prepare an Annual Summary ofthe OSHA 300 Log using the form OSHA 300-A,Summary of Work-Related Injuries and Illnesses, oran equivalent form. The summary must be certifiedfor accuracy and completeness and be posted in theworkplace by February 1 of the year following the134OSHA RECORDKEEPINGHANDBOOK

year covered by the summary. The summary mustremain posted until April 30 of the year in which itwas posted.Preparing the Annual Summary requires foursteps: reviewing the OSHA 300 log, computing andentering the summary information on the Form 300-A, certification, and posting. First, the employer mustreview the Log as extensively as necessary to makesure it is accurate and complete. Second, theemployer must total the columns on the Log; transferthem to the summary form; and enter the calendaryear covered, the name of the employer, the nameand address of the establishment, the average numberof employees on the establishment’s payroll forthe calendar year, and the total hours worked by thecovered employees. If there were no recordablecases at the establishment for the year covered, thesummary must nevertheless be completed by enteringzeros in the total for each column of the OSHA300 Log. If a form other than the OSHA 300-A isused, as permitted by paragraph 1904.29(b)(4), thealternate form must contain the same information asthe OSHA 300-A form and include identical statementsconcerning employee access to the Log andSummary and employer penalties for falsifying thedocument as are found on the OSHA 300-A form.Third, the employer must certify to the accuracyand completeness of the Log and Summary, using atwo-step process. The person or persons who supervisethe preparation and maintenance of the Log andSummary (usually the person who keeps the OSHArecords) must sign the certification statement on theform, based on their direct knowledge of the data onwhich it was based. Then, to ensure greater awarenessand accountability of the recordkeepingprocess, a company executive, who may be anowner, a corporate officer, the highest ranking officialworking at the establishment, or that person’s immediatesupervisor, must also sign the form to certify toits accuracy and completeness. Certification of thesummary attests that the individual making the certificationhas a reasonable belief, derived from his orher knowledge of the process by which the informationin the Log was reported and recorded, that theLog and summary are “true” and “complete.”Fourth, the Summary must be posted no laterthan February 1 of the year following the year coveredin the Summary and remain posted until April30 of that year in a conspicuous place where noticesare customarily posted. The employer must ensurethat the Summary is not defaced or altered duringthe 3 month posting period.Changes from the former rule.Although the final rule’s requirements for preparingthe Annual Summary are generally similar to thoseof the former rule, the final rule incorporates fourimportant changes that OSHA believes will strengthenthe recordkeeping process by ensuring greatercompleteness and accuracy of the Log andSummary, providing employers and employees withbetter information to understand and evaluate theinjury and illness data on the Annual Summary, andfacilitating greater employer and employee awarenessof the recordkeeping process.1. Company Executive Certification of the AnnualSummary.The final rule carries forward the proposed rule’srequirement for certification by a higher rankingcompany official, with minor revision. OSHA concludesthat the company executive certificationprocess will ensure greater completeness and accuracyof the Summary by raising accountability forOSHA recordkeeping to a higher managerial levelthan existed under the former rule. OSHA believesthat senior management accountability is essential ifthe Log and Annual Summary are to be accurate andcomplete. The integrity of the OSHA recordkeepingsystem, which is relied on by the BLS for nationalinjury and illness statistics, by OSHA and employersto understand hazards in the workplaces, by employeesto assist in the identification and control of thehazards identified, and by safety and health professionalseverywhere to analyze trends, identify emerginghazards, and develop solutions, is essential tothese objectives. Because OSHA cannot oversee thepreparation of the Log and Summary at each establishmentand cannot audit more than a small sampleof all covered employers’ records, this goal is accomplishedby requiring employers or company executivesto certify the accuracy and completeness of theLog and Summary.The company executive certification requirementimposes different obligations depending on the structureof the company. If the company is a sole proprietorshipor partnership, the certification may bemade by the owner. If the company is a corporation,the certification may be made by a corporate officer.For any management structure, the certification maybe made by the highest ranking company officialworking at the establishment covered by the Log (forexample, the plant manager or site supervisor), orthe latter official’s supervisor (for example, a corporateor regional director who works at a differentestablishment, such as company headquarters).§1904.32OSHA RECORDKEEPINGHANDBOOK135

§1904.32The company executive certification is intendedto ensure that a high ranking company official withresponsibility for the recordkeeping activity and theauthority to ensure that the recordkeeping function isperformed appropriately has examined the recordsand has a reasonable belief, based on his or herknowledge of that process, that the records are accurateand complete.The final rule does not specify how employers areto evaluate their recordkeeping systems to ensuretheir accuracy and completeness or what steps anemployer must follow to certify the accuracy andcompleteness of the Log and Summary with confidence.However, to be able to certify that one has areasonable belief that the records are complete andaccurate would suggest, at a minimum, that the certifieris familiar with OSHA’s recordkeeping requirements,and the company’s recordkeeping practicesand policies, has read the Log and Summary, andhas obtained assurance from the staff responsible formaintaining the records (if the certifier does not personallykeep the records) that all of OSHA’s requirementshave been met and all practices and policiesfollowed. In most if not all cases, the certifier will befamiliar with the details of some of the injuries andillnesses that have occurred at the establishment andwill therefore be able to spot check the OSHA 300Log to see if those cases have been entered correctly.In many cases, especially in small to medium establishments,the certifier will be aware of all of theinjuries and illnesses that have been reported at theestablishment and will thus be able to inspect theforms to make sure all of the cases that should havebeen entered have in fact been recorded.The certification required by the final rule may bemade by signing and dating the certification sectionof the OSHA 300-A form, which replaces the summaryportion of the former OSHA 200 form, or by signingand dating a separate certification statement andappending it to the OSHA Form 300-A. A separatecertification statement must contain the identicalpenalty warnings and employee access informationas found on the OSHA Form 300-A. A separate statementmay be needed when the certifier works atanother location and the certification is mailed orfaxed to the location where the Summary is posted.......The criminal penalties referred to in paragraph1904.9(a) of the former rule are authorized by section17(g) of the OSH Act and do not need to be repeatedin the final rule to be enforced. Similarly, the administrativecitations and penalties referred to in paragraph1904.9(b) of the former rule are authorized bysections 9 and 17 of the OSH Act. The warning statementon the final OSHA 300-A form or its equivalentshould be sufficient to remind those who certify theforms of their legal obligations under the Act....OSHA has not adopted a dual certification requirementbecause one certification should be enough tomake sure that the records are accurate. In addition,a dual certification requirement would increase thecomplexity and burdens of the final rule, without significantlyadding incentives for employers to keepbetter records....Although OSHA believes that the final rule hasmany features that will enhance the accuracy andcompleteness of reporting, the Agency has includeda company executive level of certification in the finalrule. OSHA believes that company executive certificationwill raise employer awareness of the importanceof the OSHA records, improve their accuracy andcompleteness (and thus utility), and decrease anyunderreporting incentive.The final rule therefore requires a higher levelcompany official to certify to their accuracy and completeness.Thus the final rule reflects OSHA’s agreementwith those commenters who stated that theLog and Summary must be actively overseen byhigher level management and that certification bysuch an official would make management’s responsibilityfor the accuracy and completeness of the systemclear.......In the final rule, the person who must performthe certification must be a company executive. OSHAdoes not believe that an industrial hygienist or a safetyofficer is likely to have sufficient authority toensure the integrity of a company’s recordkeepingprocess. Therefore, the final rule requires that thecertification be provided by an owner of a sole proprietorshipor partnership, an officer of the corporation,the highest-ranking official at the establishment,or that person’s supervisor.......OSHA has added that the certification requiredby the final rule must be based on the official’s “reasonablebelief” that the Log and Summary are accurateand complete. Certification thus means that thecertifying official has a general understanding of theOSHA recordkeeping requirements, is familiar withthe company’s recordkeeping progess, and knowsthat the company has effective recordkeeping proceduresand uses those procedures to produce accurateand complete records. The precise meaning of“reasonable belief” will be determined on a case-bycasebasis because circumstances vary from establishmentto establishment and decisions about therecordability of individual cases may differ, dependingupon case-specific details.136OSHA RECORDKEEPINGHANDBOOK

2. Number of employees and hours worked....The final rule requires employers to include in theAnnual Summary (the OSHA Form 300-A) the annualaverage number of employees covered by the Log andthe total hours worked by all covered employees....OSHA’s view is that the value of the total hoursworked and average number of employees informationrequires its inclusion in the Summary, and thefinal rule reflects this determination. Having thisinformation will enable employers and employees tocalculate injury and illness incidence rates, which arewidely regarded as the best statistical measure forthe purpose of comparing an establishment’s injuryand illness experience with national statistics, therecords of other establishment, or trends over severalyears. Having the data available on the Form 300-Awill also make it easier for the employer to respondto government requests for the data, which occurswhen the BLS and OSHA collect the data by mail,and when an OSHA or State inspector visits the facility.In particular, it will be easier for the employer toprovide the OSHA inspector with the hours workedand employment data for past years.......[T]he rule does not require employers to useany particular method of calculating the totals, thusproviding employers who do not maintain certainrecords--for example the total hours worked bysalaried employees--or employers without sophisticatedcomputer systems, the flexibility to obtain theinformation in any reasonable manner that meets theobjectives of the rule. Employers who do not havethe ability to generate precise numbers can use variousestimation methods. For example, employerstypically must estimate hours worked for workerswho are paid on a commission or salary basis.Additionally, the instructions for the OSHA 300-ASummary form include a worksheet to help theemployer calculate the total numbers of hoursworked and the average number of.3. Extended posting period.The final rule’s requirement increasing the summaryForm 300-A posting period from one month to threemonths is intended to raise employee awareness ofthe recordkeeping process (especially that of newemployees hired during the posting period) by providinggreater access to the previous year’s summarywithout having to request it from management.......OSHA has decided to adopt a 3-month postingperiod. The additional posting period will provideemployees with additional opportunity to review thesummary information, raise employee awareness ofthe records and their right to access them, and generallyimprove employee participation in the recordkeepingsystem without creating a “wallpaper” postingof untimely data. In addition, OSHA has concludedthat any additional burden on employers will beminimal at best and, in most cases, insignificant. Allthe final rule requires the employer to do is to leavethe posting on the bulletin board instead of removingit at the end of the one-month period.The final rule thus requires that the Summary beposted from February 1 until April 30, a period of threemonths; OSHA believes that the 30 days in Januarywill be ample, as it has been in the past, for preparingthe current year’s Summary preparatory to posting.4. Review of the records.The provisions of the final rule requiring the employerto review the Log entries before totaling them forthe Annual Summary are intended as an additionalquality control measure that will improve the accuracyof the information in the Annual Summary, whichis posted to provide information to employees and isalso used as a data source by OSHA and the BLS.Depending on the size of the establishment and thenumber of injuries and illnesses on the OSHA 300Log, the employer may wish to cross-check with anyother relevant records to make sure that all therecordable injuries and illnesses have been includedon the Summary. These records may include workers’compensation injury reports, medical records,company accident reports, and/or time and attendancerecords.OSHA did not propose that any auditing or reviewprovisions be included in the final rule....In the final rule, OSHA has not adopted regulatorylanguage that requires formal audits of the OSHAPart 1904 records. However, the final rule doesrequire employers to review the OSHA records asextensively as necessary to ensure their accuracy.The Agency believes that including audit provisionsis not necessary because the high-level certificationrequirement will ensure that recordkeeping receivesthe appropriate level of management attention.......OSHA has not required records audits in thefinal rule because the Agency believes that the combinationof final rule requirements providing foremployee participation (section 1904.35), protectingemployees against discrimination for reporting workrelatedinjuries and illnesses to their employer (section1904.36), requiring review by employers of therecords at the end of the year, and mandating twolevel certification of the records will provide the qualitycontrol mechanisms needed to improve the qualityof the OSHA records.§1904.32OSHA RECORDKEEPINGHANDBOOK137

Deletions from the former rule....For example, the former rule required employerswith employees who did not report to or work at asingle establishment, or who did not report to a fixedestablishment on a regular basis, to hand-deliver ormail a copy of the Summary to those employees....In the final rule, OSHA has decided not to includethe proposed requirement for individual mailings asunnecessary because final paragraph 1904.30(b)(3)requires that every employee be linked, for recordkeepingpurposes, to at least one establishmentkeeping a Log and Summary that will be preparedand posted. In other words, every employee coveredby the rule will have his or her injuries or illnessesrecorded on a particular establishment’s Log, even ifthat employee does not routinely report to that establishmentor is temporarily working there. Thus everyemployee will have 3-month access to the Log andSummary at the posted location or may obtain acopy the next business day under paragraph1904.35(b)(2)(iii), making the need for hand-deliveryor mailing unnecessary.......Closing an establishment does not . . . relieve anemployer of the obligation to prepare and certify theSummary for whatever portion of the calendar yearthe establishment was operating, retain the Summary,and make the Summary accessible to employeesand government officials....OSHA believes, based on the record evidence andits own extensive recordkeeping experience, thatposting the Summary is important to safety andhealth for all the reasons described above. Some ofthe suggested alternatives may be useful, and OSHAencourages employers to use any practices that theybelieve will enhance their own and employee awarenessof safety and health issues, provided that theyalso comply fully with the final rule’s posting requirements.......[T]he final rule accordingly requires that multiestablishmentemployers post a Summary in eachestablishment relating that establishment’s injury andillness experience for the preceding year.§1904.32FREQUENTLY ASKED QUESTIONS: Section 1904.32 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.32 Annual summaryQuestion 32-1. How do I calculate the “total hoursworked” on my annual summary when I have bothhourly and temporary workers?To calculate the total hours worked by all employees,include the hours worked by salaried, hourly, parttimeand seasonal workers, as well as hours workedby other workers you supervise (e.g., workers suppliedby a temporary help service). Do not includevacation, sick leave, holidays, or any other non-worktime even if employees were paid for it. If your establishmentkeeps records of only the hours paid or ifyou have employees who are not paid by the hour,you must estimate the hours that the employeesactually worked.Question 32-2. If an employer has no recordablecases for the year, is an OSHA 300-A, AnnualSummary, still required to be completed, certifiedand posted?Yes. After the end of the year, employers mustreview the Log to verify its accuracy, summarize the300 Log information on the 300A summary form, andcertify the summary (a company executive must signthe certification). This information must then be postedfor three months, from February 1 to April 30.Question 32-3. If employers electronically post theOSHA 300-A Summary of Work-related Injuries andIllnesses, are they in compliance with the postingrequirements of 1904.32(b)(5)?No. The recordkeeping rule allows all forms to bekept on computer equipment or at an alternate location,as long as the employer can produce the datawhen needed. Section 1904.32(b)(5), requiresemployers to post a copy of the Annual Summary ineach establishment, where notices are normally posted[see 1903.2(a)], no later than February 1 of theyear following the year covered by the records andkept in place until April 30. Only the OSHA 300-A138OSHA RECORDKEEPINGHANDBOOK

LETTERS OF INTERPRETATION: Section 1904.32Section 1904.32 Annual summaryOSHA requirements are set by statute, standards and regulations. Letters of interpretation explainthese requirements and how they apply to particular circumstances, but they cannot create additionalemployer obligations. These letters constitute OSHA’s interpretation of the requirements discussed.Note that OSHA enforcement guidance may be affected by changes to OSHA rules. Also, from time totime we update our guidance in response to new information. To keep apprised of such developments,you can consult OSHA’s website at http://www.osha.gov.Letters of Interpretation constitute OSHA’s interpretation only of the requirements discussed and maynot be applicable to any situation not delineated within the original correspondence.Letter of interpretation related to sections 1904.26(b)(6), 1904.29(b)(10), 1904.32(a)(4) and 1904.32(b)(6) –Posting requirements for the OSHA 300 Log and OSHA 300-A Summary Form.December 18, 2003Ms. Alana GreerAmerican Civil Liberties Union of Florida4500 Biscayne Boulevard, Suite 340Miami, FL 33137-3227Dear Ms. Greer:This is in response to your letter dated July 9, 2003. Please excuse the delay in our response.Thank you for your comments pertaining to the Occupational Safety and Health Administration’s(OSHA) Injury and Illness Recording and Reporting requirements contained in 29 CFR Part 1904.You state that your office has received several complaints regarding the medical privacy of employeesregarding the recordkeeping requirements. Specifically, you ask OSHA to clarify the appropriatenessof posting the entire OSHA 300 form (the Log of Work-Related Injuries and Illnesses) at theemployer’s establishment.§1904.32You are correct in your understanding that, while employers are required to complete both OSHAForm 300 Log of Work-Related Injuries and Illnesses and OSHA Form 300-A Summary of Work-Related Injuries and Illnesses, only the latter, Form 300-A, is required to be posted in the workplace.Despite the fact that only the Summary Form 300-A is required to be posted, some employersapparently have posted both the Form 300 and Form 300-A in the workplace. You suggest that furtherclarification is needed with the recordkeeping forms or elsewhere, making clear to employersthat the Form 300 should not be posted along with the Summary Form 300-A.The instructions that accompany the OSHA recordkeeping forms do include the following Questionand Answer: “When must you post the Summary? You must post the Summary only--not the Log--by February 1 of the year following the year covered by the form and keep it posted until April 30of that year.”We will take additional steps to emphasize the distinction between the Form 300 and the Form300-A and the fact that only the latter is required to be posted in the workplace, through NewsReleases that we issue that remind employers of the posting requirement, and including this issueunder the Frequently Asked Questions on the Recordkeeping Section of our website. Your assistancein also making employers aware of this distinction is appreciated.OSHA RECORDKEEPINGHANDBOOK139

I do want to make one further point of clarification. While our rules do not require the Form 300to be posted (and we will attempt to communicate that more clearly, as described above), the regulationalso does not prohibit an employer from posting the Form 300 along with the Form 300-A.However, if the employer does choose to post the full Form 300 Log, they should post the Log inan area only accessible by those granted access under the rule (i.e., employees, former employees,employee representatives, and an authorized employee representative). If the posting area is accessibleby others (e.g., members of the public) the employer must remove or hide all names of theinjured or ill employees as set out in Section 1904.29(b)(10). In addition, 1910.29 prohibits theemployer from including the employee’s name for “privacy concern” cases whenever the Form 300Log is made available to coworkers, former employees, or employee representatives.Thank you for your interest in occupational safety and health. We hope you find this informationhelpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation lettersexplain these requirements and how they apply to particular circumstances, but they cannotcreate additional employer obligations. This letter constitutes OSHA’s interpretation of the requirementsdiscussed. Note that our enforcement guidance may be affected by changes to OSHA rules.Also, from time to time we update our guidance in response to new information. To keepappraised of such developments, you can consult OSHA’s website at http://www.osha.gov. If youhave any further questions, please contact the Division of Recordkeeping Requirements, at 202-693-1702.Sincerely,§1904.32John L. HenshawAssistant Secretary140OSHA RECORDKEEPINGHANDBOOK

Section 1904.33Retention and updating(66 FR 6131, Jan. 19, 2001)REGULATION: Section 1904.33Subpart D – Other OSHA injury and illness recordkeeping requirements(66 FR 6130, Jan. 19, 2001)(a) Basic requirement.You must save the OSHA 300 Log, the privacycase list (if one exists), the annual summary, and theOSHA 301 Incident Report forms for five (5) years followingthe end of the calendar year that theserecords cover.(b) Implementation.(1) Do I have to update the OSHA 300 Log duringthe five-year storage period?Yes, during the storage period, you must updateyour stored OSHA 300 Logs to include newly discoveredrecordable injuries or illnesses and to show anychanges that have occurred in the classification ofpreviously recorded injuries and illnesses. If thedescription or outcome of a case changes, you mustremove or line out the original entry and enter thenew information.(2) Do I have to update the annual summary?No, you are not required to update the annualsummary, but you may do so if you wish.(3) Do I have to update the OSHA 301 IncidentReports?No, you are not required to update the OSHA 301Incident Reports, but you may do so if you wish.PREAMBLE DISCUSSION: Section 1904.33(66 FR 6048-6050, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.33 Retention and updating.Section 1904.33 of the final rule deals with the retentionand updating of the OSHA Part 1904 recordsafter they have been created and summarized. Thefinal rule requires the employer to save the OSHA300 Log, the Annual Summary, and the OSHA 301Incident Report forms for five years following the endof the calendar year covered by the records. The finalrule also requires the employer to update the entrieson the OSHA 300 Log to include newly discoveredcases and show changes that have occurred to previouslyrecorded cases. The provisions in section1904.33 state that the employer is not required toupdate the 300A Annual Summary or the 301Incident Reports, although the employer is permittedto update these forms if he or she wishes to do so.As this section makes clear, the final rule requiresemployers to retain their OSHA 300 and 301 recordsfor five years following the end of the year to whichthe records apply. Additionally, employers mustupdate their OSHA 300 Logs under two circumstances.First, if the employer discovers a recordableinjury or illness that has not previously been recorded,the case must be entered on the forms. Second, ifa previously recorded injury or illness turns out,based on later information, not to have been recordedproperly, the employer must modify the previousentry. For example, if the description or outcome of acase changes (a case requiring medical treatmentbecomes worse and the employee must take days offwork to recuperate), the employer must remove orline out the original entry and enter the new information.The employer also has a duty to enter the dateof an employee’s return to work or the date of aninjured worker’s death on the Form 301; OSHA considersthe entering of this information an integralpart of the recordkeeping for such cases. The AnnualSummary and the Form 301 need not be updated,unless the employer wishes to do so. The requirementsin this section 1904.33 do not affect or super-§1904.33OSHA RECORDKEEPINGHANDBOOK141

sede any longer retention periods specified in otherOSHA standards and regulations, e.g., in OSHAhealth standards such as Cadmium, Benzene, or Lead(29 CFR 1910.1027, 1910.1028, and 1910.1025, respectively)....In this final rule, OSHA has decided to retain thefive-year retention requirement for OSHA injury andillness records because the longer time period willenable employers, employees, and researchers toobtain sufficient data to discover patterns and trendsof illnesses and injuries and, in many cases, to demonstratethe statistical significance of such data.In addition, OSHA has concluded that the fiveyearretention period will add little additional cost oradministrative burden, since relatively few cases willsurface more than three years after the injury and illnessoccurred, and the vast majority of cases areresolved in a short time and do not require updating.In addition, OSHA believes that other provisions ofthe final rule (e.g., computerization of records, centralizedrecordkeeping, and the capping of daycounts) will significantly reduce the recordkeepingcosts and administrative burden associated with thetracking of long-term cases.......The final rule requires Log updates to be madeon a continuing basis, i.e., as new information is discovered.For example, if a new case is discoveredduring the retention period, it must be recorded within7 calendar days of discovery, the same intervalrequired for the recording of any new case. If newinformation about an existing case is discovered, itshould be entered within 7 days of receiving the newinformation. OSHA has also decided to require updatingover the entire five-year retention period....After reviewing these comments and the evidencein the record, OSHA has decided not to require theupdating of annual summaries. Eliminating thisrequirement from the final rule will minimize employers’administrative burdens and costs, avoid duplication,and avoid the complications associated with thecertification of updated summaries, the replacementof posted summaries, and the transmission of summariesto remote sites. The Agency concludes thatupdating the OSHA Form 300 or its equivalent for aperiod of five years will provide a sufficient amountof accurate information for recordkeeping purposes.OSHA is persuaded that updating the year-end summarywould provide little benefit as long as the informationfrom which the summaries are derived (theOSHA Form 300) is updated for a full five-year period.......[T]he final rule makes it clear that employersmay, if they choose, update either the Summary orthe Form 301.§1904.33FREQUENTLY ASKED QUESTIONS: Section 1904.33 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.33 Retention and updatingThis section will be developed as letters of interpretation become available.LETTERS OF INTERPRETATION: Section 1904.33Section 1904.33 Retention and updatingOSHA requirements are set by statute, standards and regulations. Letters of interpretation explainthese requirements and how they apply to particular circumstances, but they cannot create additionalemployer obligations. These letters constitute OSHA’s interpretation of the requirements discussed.Note that OSHA enforcement guidance may be affected by changes to OSHA rules. Also, from time totime we update our guidance in response to new information. To keep apprised of such developments,you can consult OSHA’s website at http://www.osha.gov.Letters of Interpretation constitute OSHA’s interpretation only of the requirements discussed and maynot be applicable to any situation not delineated within the original correspondence.Letter of interpretation related to sections 1904.29, 1904.29(a), 1904.29(b), 1904.29(b)(2), 1904.31, 1904.33,1904.35, 1904.40 and 1904.46 –Recording criteria for cases involving workers from a temporary help service, employee leasing service,or personnel supply service.142OSHA RECORDKEEPINGHANDBOOK

June 23, 2003Mr. Edwin G. Foulke, Jr.Jackson Lewis LLP2100 Landmark Building301 North Main StreetGreenville, SC 29601-2122Dear Mr. Foulke:Thank you for your April 3, 2003 facsimile and April 10, 2003 letter to the Occupational Safetyand Health Administration (OSHA) regarding the Injury and Illness Recording and ReportingRequirements contained in 29 CFR Part 1904. Specifically, you ask OSHA to clarify the recordingcriteria for cases involving workers from a temporary help service, employee leasing service, or personnelsupply service. Your questions have been outlined below followed by OSHA’s response.Question 1: Under 29 CFR Section 1904.31, employers who supervise temporary or leased employeesat their facility are required to maintain the OSHA 300 Logs for those employees. With respectto those injuries, can the employer keep a separate 300 Log for the company employees and one logfor the temporary or leased employees?Response: The log is to be kept for an establishment. Under Section 1904.46 Definitions, an establishmentis a single physical location where business is conducted or where services or industrialoperations are performed. The controlling employer (using firm) may sub-divide the OSHA 300Log to provide separate listings of temporary workers, but must consider the separate listings to beone record for all recordkeeping purposes, including access by government representatives, employees,former employees and employee representatives as required by Section 1904.35 and 1904.40 inthe Recordkeeping regulation. OSHA’s view is that a given establishment should have one OSHALog. Injuries and illnesses for all the covered employees at the establishment are then entered intothat record to create a single OSHA 300-A Summary form at the end of the year.Question 2: Under 29 CFR Section 1904.31, while the standard clearly indicates the 300 Logs mustbe maintained for supervised temporary or leased employees, it does not indicate who maintains the301 documents or the first report of injuries, as well as the medical records on those employees.Also, if a temporary or leased employee has days away from work, it is normally the temporary orleased employee provider’s contractual responsibility to handle the medical treatment of the employee.The temporary or leased employee provider is the only person/entity to have the information ondays away from work. Who is responsible for maintaining the 301 logs or the first report of injuryforms as well as the medical records for these employees, assuming that the employee provider canproduce the required documents to the employer for production in the time periods set forth in thestandard?§1904.33Response: Section 1904.29(a) says: “You must use OSHA 300, 300-A and 301 forms, or equivalentforms, for recordable injuries and illnesses.” In addition, 1904.29(b)(2) says: “You must completean OSHA 301 Incident Report form, or an equivalent form, for each recordable injury or illnessentered on the OSHA 300 Log.” Therefore, when the workers from a temporary help service orleasing firm are under the day-to-day supervision of the controlling party (using firm) the entireOSHA injury and illness recordkeeping responsibility belongs to the using firm.Question 3: Using the facts in Question 2, it is also important to note that an injured temporary orleased employee, who requires days from work, may be replaced by another leased or temporaryemployee at the work site. From time of the injury, the employer has no information about thereturn to work status of the injured employee. In fact, the injured employee may be assigned toanother employer once he or she is able to return to work. How can the original employer keepaccurate 300 Logs when the employee provider has sole access to information on days away fromwork and return to work status?OSHA RECORDKEEPINGHANDBOOK143

Response: The controlling employer has the ultimate responsibility for making good-faith recordkeepingdeterminations regarding an injury and illness to any of those temporary employees theysupervise on a day-to-day basis. Although controlling employers ultimately decide if and how a particularcase should be recorded, their decision must not be an arbitrary one, but should be made inaccordance with the requirements of the Act, regulation, and the instructions on the forms.Therefore, the controlling employer must make reasonable efforts to acquire the necessary informationin order to satisfy its Part 1904 recordkeeping requirements. However, if the controllingemployer is not able to obtain information from the employer of the leased or temporary employee,the controlling employer should record the injury based on whatever information is available to thecontrolling employer. The preamble contains a brief reference about OSHA’s expectation that theemployers share information to produce accurate records, stating that “the two employers haveshared responsibilities and may share information when there is a need to do so.” (Federal Registerp. 6041)Finally, the last question you raised is whether your client or contractor has any requirements underthe recordkeeping standard to provide the new contractor the current OSHA 300 Logs for thatfacility covering those employees who now work for that contractor. Since there was no change ofyour client’s business ownership, he or she needs only to retain the records as per 1904.33 and provideaccess under 1904.35 and 1904.40.Thank you for your interest in occupational safety and health. We hope you find this informationhelpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation lettersexplain these requirements and how they apply to particular circumstances, but they cannot createadditional employer obligations. This letter constitutes OSHA’s interpretation of the requirementsdiscussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also,from time to time we update our guidance in response to new information. To keep appraised ofsuch developments, you can consult OSHA’s website at http://www.osha.gov. If you have any furtherquestions, please contact the Division of Recordkeeping Requirements, at 202-693-1702.Sincerely,§1904.33John L. HenshawAssistant Secretary144OSHA RECORDKEEPINGHANDBOOK

Section 1904.34Change in business ownership(66 FR 6132, Jan. 19, 2001)REGULATION: Section 1904.34Subpart D – Other OSHA injury and illness recordkeeping requirements(66 FR 6130, Jan. 19, 2001)If your business changes ownership, you are responsiblefor recording and reporting work-related injuriesand illnesses only for that period of the year duringwhich you owned the establishment. You must transferthe Part 1904 records to the new owner. The newowner must save all records of the establishmentkept by the prior owner, as required by Section1904.33 of this Part, but need not update or correctthe records of the prior owner.PREAMBLE DISCUSSION: Section 1904.34(66 FR 6050, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.34 Change in business ownershipSection 1904.34 of the final rule addresses the situationthat arises when a particular employer ceasesoperations at an establishment during a calendaryear, and the establishment is then operated by anew employer for the remainder of the year. Thephrase “change of ownership,” for the purposes ofthis section, is relevant only to the transfer of theresponsibility to make and retain OSHA-requiredinjury and illness records. In other words, if oneemployer, as defined by the OSH Act, transfers ownershipof an establishment to a different Employer,the new entity becomes responsible for retaining theprevious employer’s past OSHA-required records andfor creating all new records required by this rule.The final rule requires the previous owner totransfer these records to the new owner, and it limitsthe recording and recordkeeping responsibilities ofthe previous employer only to the period of the priorowner. Specifically, section 1904.34 provides that ifthe business changes ownership, each employer isresponsible for recording and reporting work-relatedinjuries and illnesses only for that period of the yearduring which each employer owned the establishment.The selling employer is required to transferhis or her Part 1904 records to the new owner, andthe new owner must save all records of the establishmentkept by the prior owner. However, the newowner is not required to update or correct therecords of the prior owner, even if new informationabout old cases becomes available....§1904.34FREQUENTLY ASKED QUESTIONS: Section 1904.34 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.34 Change in business ownershipThis section will be developed as letters of interpretation become available.LETTERS OF INTERPRETATION: Section 1904.34Section 1904.34 Change in business ownershipThis section will be developed as letters of interpretation become available.OSHA RECORDKEEPINGHANDBOOK145

Section 1904.35Employee involvement(66 FR 6132, Jan. 19, 2001)REGULATION: Section 1904.35Subpart D – Other OSHA injury and illness recordkeeping requirements(66 FR 6130, Jan. 19, 2001)§1904.35(a) Basic requirement.Your employees and their representatives must beinvolved in the recordkeeping system in several ways.(1) You must inform each employee of how he orshe is to report an injury or illness to you.(2) You must provide limited access to your injuryand illness records for your employees and their representatives.(b) Implementation.(1) What must I do to make sure that employeesreport work-related injuries and illnesses to me?(i) You must set up a way for employees to reportwork-related injuries and illnesses promptly; and(ii) You must tell each employee how to reportwork-related injuries and illnesses to you.(2) Do I have to give my employees and their representativesaccess to the OSHA injury and illnessrecords?Yes, your employees, former employees, theirpersonal representatives, and their authorizedemployee representatives have the right to accessthe OSHA injury and illness records, with some limitations,as discussed below.(i) Who is an authorized employee representative?An authorized employee representative is anauthorized collective bargaining agent of employees.(ii) Who is a “personal representative” of anemployee or former employee?A personal representative is:(A) Any person that the employee or formeremployee designates as such, in writing; or(B) The legal representative of a deceased orlegally incapacitated employee or former employee.(iii) If an employee or representative asks foraccess to the OSHA 300 Log, when do I have toprovide it?When an employee, former employee, personalrepresentative, or authorized employee representativeasks for copies of your current or storedOSHA 300 Log(s) for an establishment the employeeor former employee has worked in, you mustgive the requester a copy of the relevant OSHA300 Log(s) by the end of the next business day.(iv) May I remove the names of the employees orany other information from the OSHA 300 Logbefore I give copies to an employee, formeremployee, or employee representative?No, you must leave the names on the 300 Log.However, to protect the privacy of injured and illemployees, you may not record the employee’sname on the OSHA 300 Log for certain “privacyconcern cases,” as specified in paragraphs1904.29(b)(6) through 1904.29(b)(9).(v) If an employee or representative asks foraccess to the OSHA 301 Incident Report, when doI have to provide it?(A) When an employee, former employee, orpersonal representative asks for a copy of theOSHA 301 Incident Report describing an injury orillness to that employee or former employee, youmust give the requester a copy of the OSHA 301Incident Report containing that information by theend of the next business day.(B) When an authorized employee representativeasks for copies of the OSHA 301 Incident Reportsfor an establishment where the agent representsemployees under a collective bargaining agreement,you must give copies of those forms to theauthorized employee representative within 7 calendardays. You are only required to give the authorizedemployee representative information from theOSHA 301 Incident Report section titled “Tell usabout the case.” You must remove all other informationfrom the copy of the OSHA 301 IncidentReport or the equivalent substitute form that yougive to the authorized employee representative.(vi) May I charge for the copies?No, you may not charge for these copies the firsttime they are provided. However, if one of the designatedpersons asks for additional copies, you mayassess a reasonable charge for retrieving and copyingthe records.146OSHA RECORDKEEPINGHANDBOOK

PREAMBLE DISCUSSION: Section 1904.35(66 FR 6050-6060, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section[s] 1904.35 Employee Involvement....One of the goals of the final rule is to enhance employeeinvolvement in the recordkeeping process.OSHA believes that employee involvement isessential to the success of all aspects of an employer’ssafety and health program. This is especiallytrue in the area of recordkeeping, because free andfrank reporting by employees is the cornerstone ofthe system. If employees fail to report their injuriesand illnesses, the “picture” of the workplace thatthe employer’s OSHA forms 300 and 301 reveal willbe inaccurate and misleading. This means, in turn,that employers and employees will not have theinformation they need to improve safety and healthin the workplace.Section 1904.35 of the final rule therefore establishesan affirmative requirement for employers toinvolve their employees and employee representativesin the recordkeeping process. The employermust inform each employee of how to report aninjury or illness, and must provide limited access tothe injury and illness records for employees andtheir representatives....Under the employee involvement provisions ofthe final rule, employers are required to let employeesknow how and when to report work-relatedinjuries and illnesses. This means that the employermust establish a procedure for the reporting ofwork-related injuries and illnesses and train itsemployees to use that procedure. The rule does notspecify how the employer must accomplish theseobjectives. The size of the workforce, employees’language proficiency and literacy levels, the workplaceculture, and other factors will determine whatwill be effective for any particular workplace.... The prominent employee involvement issuesin the rulemaking were thus not whether employeeinvolvement should be strengthened but to whatextent and in what ways employees should bebrought into the process....OSHA has strengthened the final rule to promotebetter injury and illness information byincreasing employees’ knowledge of their employers’recordkeeping program and by removing barriersthat may exist to the reporting of work-relatedinjuries and illnesses. To achieve this goal, the finalrule establishes a simple two-part process for eachemployer who is required to keep records, as follows:• Set up a way for employees to report work-relatedinjuries and illnesses promptly; and• Inform each employee of how to report workrelatedinjuries and illnesses.OSHA agrees with commenters that employeesmust know and understand that they have an affirmativeobligation to report injuries and illnesses.Additionally, OSHA believes that many employersalready take these actions as a common senseapproach to discovering workplace problems, andthat the rule will thus, to a large extent, be codifyingcurrent industry practice, rather than breakingnew ground.OSHA is convinced that a performance requirement,rather than specific requirements, willachieve this objective effectively, while still givingemployers the flexibility they need to tailor theirprograms to the needs of their workplaces. TheAgency finds that employee awareness and participationin the recordkeeping process is bestachieved by such provisions of the final rule as therequirement to extend the posting period for theOSHA 300 summary, the addition of accessibilitystatements on the OSHA Summary, and requirementsdesigned to facilitate employee access torecords....Employee access to OSHA injury and illnessrecordsThe Part 1904 final rule continues OSHA’s longstandingpolicy of allowing employees and theirrepresentatives access to the occupational injuryand illness information kept by their employers,with some limitations. However, the final ruleincludes several changes to improve employees’access to the information, while at the same timeimplementing several measures to protect the privacyinterests of injured and ill employees. Section1904.35 requires an employer covered by the Part§1904.35OSHA RECORDKEEPINGHANDBOOK147

§1904.351904 regulation to provide limited access to theOSHA recordkeeping forms to current and formeremployees, as well as to two types of employeerepresentatives. The first is a personal representativeof an employee or former employee, who is aperson that the employee or former employee designates,in writing, as his or her personal representative,or is the legal representative of a deceasedor legally incapacitated employee or former employee.The second is an authorized employee representative,which is defined as an authorized collectivebargaining agent of one or more employeesworking at the employer’s establishment.Section 1904.35 accords employees and theirrepresentatives three separate access rights. First,it gives any employee, former employee, personalrepresentative, or authorized employee representativethe right to a copy of the current OSHA 300Log, and to any stored OSHA 30 log(s), for anyestablishment in which the employee or formeremployee has worked. The employer must provideone free copy of the OSHA 300 Log(s) by the end ofthe next business day. The employee, formeremployee, personal representative or authorizedemployee representative is not entitled to see, or toobtain a copy of, the confidential list of names andcase numbers for privacy cases. Second, anyemployee, former employee, or personal representativeis entitled to one free copy of the OSHA 301Incident Report describing an injury or illness tothat employee by the end of the next business day.Finally, an authorized employee representative isentitled to copies of the right-hand portion of allOSHA 301 forms for the establishment(s) where theagent represents one or more employees under acollective bargaining agreement. The right-handportion of the 301 form contains the heading[“Information about the case,”] and elicits informationabout how the injury occurred, including theemployee’s actions just prior to the incident, thematerials and tools involved, and how the incidentoccurred, but does not contain the employee’sname. No information other than that on the righthandportion of the form may be disclosed to anauthorized employee representative. The employermust provide the authorized employee representativewith one free copy of all the 301 forms for theestablishment within 7 calendar days.Employee privacy is protected in the final rule inparagraphs 1904.29(b)(7) to (10). Paragraph1904.29(b)(7) requires the employer to enter thewords “privacy case” on the OSHA 300 Log, in lieuof the employee’s name, for recordable privacyconcern cases involving the following types ofinjuries and illnesses: (i) an injury from a needle orsharp object contaminated by another person’sblood or other potentially infectious material; (ii) aninjury or illness to an intimate body part or to thereproductive system; (iii) an injury or illness resultingfrom a sexual assault; (iv) a mental illness; (v)an illness involving HIV, hepatitis; or tuberculosis,or (vi) any other illness, if the employee independentlyand voluntarily requests that his or her namenot be entered on the log....The employer may take additional action in privacyconcern cases if warranted. Paragraph1904.29(b)(9) allows the employer to use discretionin describing the nature of the injury or illness in aprivacy concern case, if the employer has a reasonablebasis to believe that the injured or ill employeemay be identified from the records even thoughthe employee’s name has been removed. Only thesix types of injuries and illnesses listed in Paragraph1904.29(b)(7) may be considered privacyconcern cases, and thus the additional protectionoffered by paragraph 1904.29(b)(9) applies only tosuch cases.Paragraph 1904.29(b)(10) protects employee privacyif the employer decides voluntarily to disclosethe OSHA 300 and 301 forms to persons other thanthose who have a mandatory right of access underthe final rule. The paragraph requires the employerto remove or hide employees’ names or other personallyidentifying information before disclosingthe forms to persons other than government representatives,em-ployees, former employees orauthorized representatives, as required by paragraphs1904.40 and 1904.35, except in three cases.The employer may disclose the forms, completewith personally identifying information, [ ] only: (i)to an auditor or consultant hired by the employerto evaluate the safety and health program; (ii) tothe extent necessary for processing a claim forworkers’ compensation or other insurance benefits;or (iii) to a public health authority or law enforcementagency for uses and disclosures for whichconsent, an authorization, or opportunity to agreeor object is not required under section 164.512of the final rule on Standards for Privacy of IndividuallyIdentifiable Health Information, 45 CFR164.512....Balancing the Interests of Privacy and AccessOSHA historically has recognized that the Log and148OSHA RECORDKEEPINGHANDBOOK

Incident Report (Forms 300 and 301, respectively)may contain information of a sufficiently intimateand personal nature that a reasonable personwould wish it to remain confidential. In its 1978records access regulation (29 CFR 1910.1020),OSHA addressed the privacy implications of itsdecision to grant employee access to the Log. Theagency noted that while Log entries are intended tobe brief, they may contain medical information,including diagnoses of specific illnesses, and thatdisclosure to other employees, former employeesor their representatives raised a sensitive privacyissue. 43 FR 31327 (1978). However, OSHA concludedthat disclosure of the Log to current and formeremployees and their representatives benefits theseemployees generally by increasing their awarenessand understanding of the health and safety hazardsto which they are, or have been, exposed.OSHA found that this knowledge “will help employeesto protect themselves from future occurrences,”and that “[i]n such cases, the right of privacymust be tempered by the obvious exigenciesof informing employees about the effects of workplacehazards.”...OSHA continues to believe that granting employeesa broad right of access to injury and illnessrecords serves important public interests. There ispersuasive evidence that access by employees andtheir representatives to the Log and the IncidentReport serves as a useful check on the accuracyof the employer’s recordkeeping and promotesgreater employee involvement in prevention programsthat contribute to safer, more healthful workplaces....There exist at present no mechanisms to protectagainst unwarranted disclosure of private informationcontained in OSHA records. While Agency policyis that employees and their representatives withaccess to records should treat the information containedtherein as confidential except as necessaryto further the purposes of the Act, the Secretarylacks statutory authority to enforce such a policyagainst employees and representatives (e.g., 29U.S.C. Sections 658, 659) (Act’s enforcement mechanismsdirected solely at employers)....OSHA has concluded that the disclosure ofoccupational injury and illness records to employeesand their representatives serves importantpublic policy interests. These interests support arequirement for access by employees and theirrepresentatives to personally identifiable informationfor all but a limited number of cases recordedon the Log, and to all information on the righthandside of the Form 301. However, OSHA alsoconcludes that prior Agency access policies maynot have given adequate consideration to the harmwhich could result from disclosure of intimatemedical information. In the absence of effectivesafeguards against unwarranted use or disclosureof private information in the injury and illnessrecords, confidentiality must be preserved for particularlysensitive cases. These “privacy concerncases” listed in paragraph 1904.29 (b)(7) of thefinal rule involve diseases, such as AIDS and hepatitis,other illnesses if the employee voluntarilyrequests confidentiality, as well as certain types ofinjuries, the disclosure of which could be particularlydamaging or embarrassing to the affectedemployee.......[T]he final rule requires that the employerwithhold the employee’s name from the OSHA 300Log for each “privacy concern case,” and maintaina separate confidential list of employee names andcase numbers. In all other respects, the final ruleensures full access to the OSHA Log by employees,former employees, personal representatives andauthorized employee representatives.Protections Against Broad Public Access...OSHA agrees that confidentiality of injury and illnessrecords should be maintained except for thosepersons with a legitimate need to know the information.This is a logical extension of the agency’sposition that a balancing test is appropriate indetermining the scope of access to be grantedemployees and their representatives. Under thistest, “the fact that protected information must bedisclosed to a party who has need for it* * * doesnot strip the information of its protection againstdisclosure to those who have no similar need.”Fraternal Order of Police, 812 F2d at 118.OSHA has determined that employees, formeremployees and authorized employee representativeshave a need for the information that justifiestheir access to records, including employee names,for all except privacy concern cases. While the possibilityexists that employees and their representativeswith access to the records could disclose theinformation to the general public, OSHA does notbelieve that this risk is sufficient to justify restrictionson the use of the records by persons grantedaccess under sections 1904.40 and 1904.35. As discussedin the following section, strong policy andlegal considerations militate against placing restric-§1904.35OSHA RECORDKEEPINGHANDBOOK149

§1904.35tions on employees’ and employee representatives’use of the injury and illness information.There is also a concern that employers may voluntarilygrant access to OSHA records to personsoutside their organization, who do not need theinformation for safety and health purposes. To protectemployee confidentiality in these circumstances,paragraph 1904.29(b)(10) requires employersgenerally to remove or shield employee namesand other personally identifying information whenthey disclose the OSHA forms to persons otherthan government representatives, employees, formeremployees or authorized employee representatives.Employers remain free to disclose unredactedrecords for purposes of evaluating a safety andhealth program or safety and health conditions atthe workplace, processing a claim for workers’compensation or insurance benefits, or carrying outthe public health or law enforcement functionsdescribed in section 164.512 of the final rule onStandards for Privacy of Individually IdentifiableHealth Information.OSHA believes that this provision protects employeeprivacy to a reasonable degree consistentwith the legitimate business needs of employersand sound public policy considerations....Misuse of the Records by Employees andTheir Representatives...While there may be instances where employeesshare the data with third parties who normallywould not be allowed to access the data directly,the final rule contains no enforceable restrictionson use by employees or their representatives.Employees and their representatives might reasonablyfear that they could be found personally liablefor violations of such restrictions. This would havea chilling effect on employees’ willingness to usethe records for safety and health purposes, sincefew employees would voluntarily risk such liability.Moreover, despite the concerns of commentersabout abuse problems, OSHA has not noted anysignificant problems of this type in the past. Thissuggests that, if such problems exist, they are infrequent.In addition, as noted in the privacy discussionabove, a prohibition on the use of the data byemployees or their representatives is beyond thescope of OSHA’s enforcement authority. For thesereasons, the employer may not require an employee,former employee or designated employee representativeto agree to limit the use of the recordsas a condition for viewing or obtaining copies ofrecords.OSHA has added a statement to the Log andIncident Report forms indicating that these recordscontain information related to employee health andmust be used in a manner that protects the confidentialityof employees to the extent possible whilethe information is used for occupational safety andhealth purposes. This statement is intended toinform employees and their representatives of thepotentially sensitive nature of the information inthe OSHA records and to encourage them to maintainemployee confidentiality if compatible withthe safety and health uses of the information.Encouraging parties with access to the forms tokeep the information confidential where possible isreasonable and should not discourage the use ofthe information for safety and health purposes.OSHA stresses, however, that the statement doesnot reflect a regulatory requirement limiting theuse of records by those with access under sections1904.35 and 1904.40.The Records Access Requirement and the ADA...Section 12112(d)(3)(B) of the ADA permits anemployer to require a job applicant to submit to amedical examination after an offer of employmenthas been made but before commencement of employmentduties, provided that medical informationobtained from the examination is kept in a confidentialmedical file and not disclosed except asnecessary to inform supervisors, first aid and safetypersonnel, and government officials investigatingcompliance with the ADA. Section 12112(d)(4)(C)requires that the same confidentiality protection beaccorded health information obtained from a voluntarymedical examination that is part of an employeehealth program.By its terms, the ADA requires confidentiality forinformation obtained from medical examinationsgiven to prospective employees, and from medicalexaminations given as part of a voluntary employeehealth program. The OSHA injury and illnessrecords are not derived from pre-employment orvoluntary health programs. The information in theOSHA injury and illness records is similar to thatfound in workers’ compensation forms, and maybe obtained by employers by the same processused to record needed information for workers’compensation and insurance purposes. The EqualEmployment Opportunity Commission (EEOC) recognizesa partial exception to the ADA’s strict confidentialityrequirements for medical informationregarding an employee’s occupational injury or150OSHA RECORDKEEPINGHANDBOOK

workers’ compensation claim. See EEOCEnforcement Guidance: Workers’ Compensationand the ADA, 5 (September 3, 1996). Therefore, it isnot clear that the ADA applies to the OSHA injuryand illness records.Even assuming that the OSHA injury and illnessrecords fall within the literal scope of the ADA’sconfidentiality provisions, it does not follow that aconflict arises. The ADA states that “nothing in thisAct shall be construed to invalidate or limit theremedies, rights, and procedures of any Federallaw. * * *” 29 U.S.C. 12201(b). In enacting the ADA,Congress was aware that other federal standardsimposed requirements for testing an employee’shealth, and for disseminating information about anemployee’s medical condition or history, determinedto be necessary to preserve the health andsafety of employees and the public. See H.R. Rep.No. 101-485 pt. 2, 101st Cong., 2d Sess. 74-75(1990), reprinted in 1990 U.S.C.C.A.N. 356, 357 (noting,e.g., medical surveillance requirements of standardspromulgated under OSH Act and FederalMine Safety and Health Act, and stating “[t]heCommittee does not intend for [the ADA] to overrideany medical standard or requirement establishedby Federal * * * law * * * that is job-relatedand consistent with business necessity”). See also29 CFR part 1630 App. p. 356. The ADA recognizesthe primacy of federal safety and health regulations;therefore such regulations, including mandatoryOSHA recordkeeping requirements, pose noconflict with the ADA. Cf. Albertsons, Inc. v.Kirkingburg, 527 U.S. 555, (1999) (“When Congressenacted the ADA, it recognized that federal safetyand health rules would limit application of the ADAas a matter of law.”)The EEOC, the agency responsible for administeringthe ADA, has recognized both in the implementingregulations at 29 CFR part 1630, and ininterpretive guidelines, that the ADA yields to therequirements of other federal safety and healthstandards. The implementing regulation codified at29 CFR 1630.15(e) explicitly states that an employer’scompliance with another federal law or regulationmay be a defense to a charge of violating theADA:(e) Conflict with other Federal laws. It may be adefense to a charge of discrimination under thispart that a challenged action is required or necessitatedby another Federal law or regulation, or thatanother Federal law or regulation prohibits anaction (including the provision of a particular reasonableaccommodation) that would otherwise berequired by this part.Interpretive guidance provided by the EEOCfurther underscores this point. The 1992 TechnicalAssistance Manual on Title I of the ADA states asfollows:4.6 Health and Safety Requirements of OtherFederal or State LawsThe ADA recognizes employers’ obligations tocomply with requirements of other laws that establishhealth and safety standards. However, the[ADA] gives greater weight to Federal than to stateor local law.1. Federal Laws and RegulationsThe ADA does not override health and safetyrequirements established under other Federal laws.If a standard is required by another Federal law, anemployer must comply with it and does not haveto show that the standard is job related and consistentwith business necessity (emphasis added).U.S. Equal Employment Opportunity Commission,A Technical Assistance Manual on the EmploymentProvisions (Title I) of the Americans WithDisabilities Act, IV-16 (1992) (Technical AssistanceManual). The Technical Assistance Manual alsostates that, while medical-related information aboutemployees must generally be kept confidential, anexception applies where “[o]ther Federal laws andregulations * * * require disclosure of relevantmedical information.” Assistance Manual at VI-12.See also Assistance Manual at VI-14-15 (actionstaken by employers to comply with requirementsimposed under the OSH Act are job related andconsistent with business necessity). For these reasons,OSHA does not believe that the mandatoryemployee access provisions of the final recordkeepingrule conflict with the provisions of theADA.Times Allowed To Provide Records...Under the final rule, an employer must provide acopy of the 300 Log to an employee, former employee,personal representative or authorized employeerepresentative on the business day following the dayon which an oral or written request for records isreceived. Likewise, when an employee, formeremployee or personal representative asks for copiesof the 301 form for an injury or illness to that§1904.35OSHA RECORDKEEPINGHANDBOOK151

employee, the employer must provide a copy by theend of the next business day. OSHA finds that theseare appropriate time frames for supplying a copy ofthe existing forms, which in the case of the Form 301is a single page. The average 300 Log is also onlyone page, although employers who have a largernumber of occupational injuries and illnesses willhave more than one page.The final rule allows the employer seven businessdays to provide copies of the OSHA 301 forms for alloccupational injuries and illnesses that occur at theestablishment....[A]s stated in the final rule, the employer maynot provide the authorized employee representativewith the information on the left side of the 301 form,so the employer needs additional time to redact thisinformation. Because the final rule only provides aright of access to an authorized employee representative(authorized collective bargaining agent), thenumber of requests should not exceed the number ofunions representing employees at the establishment....[T]he employer must provide only one freecopy. If additional copies are requested, the employermay charge for the copies.Charging Employees for Copies of the OSHARecords...In the final rule, OSHA has implemented the proposedprovision requiring employers to providecopies free of charge to employees who ask for therecords....OSHA agrees that there are some circumstanceswhere employers should have the option ofcharging for records. After receiving an initial, freecopy of requested records, an employee, formeremployee, or designated representative may becharged a reasonable search and copying fee forduplicate copies of the records. However, no feemay be charged for an update of a previouslyrequested record.FREQUENTLY ASKED QUESTIONS: Section 1904.35 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.35 Employee involvementQuestion 35-1. How does an employer inform eachemployee on how he or she is to report an injury orillness?Question 35-2. Do I have to give my employees andtheir representatives access to the OSHA injury andillness records?§1904.35Employers are required to let employees know howand when to report work-related injuries and illnesses.This means that the employer must set up a wayfor the employees to report work-related injuries andillnesses and tell its employees how to use it. TheRecordkeeping rule does not specify how the employermust accomplish these objectives, so employershave flexibility to set up systems that are appropriateto their workplace. The size of the workforce, employee’slanguage proficiency and literacy levels, theworkplace culture, and other factors will determinewhat will be effective for any particular workplace.Yes, your employees, former employees, their personalrepresentatives, and their authorized employeerepresentatives have the right to access theOSHA 300 Log Form and the OSHA 300-A SummaryForm. The employer must give the requester a copyof the OSHA 300 Form and the OSHA 300-A Form bythe end of the next business day. In addition,employees and their representatives have the rightto access the OSHA 301 Incident Form with somelimitations, in section 1904.35(b)(2)(v)(B) of therecordkeeping regulation152OSHA RECORDKEEPINGHANDBOOK

LETTERS OF INTERPRETATION: Section 1904.35Section 1904.35 Employee involvementOSHA requirements are set by statute, standards and regulations. Letters of interpretation explainthese requirements and how they apply to particular circumstances, but they cannot create additionalemployer obligations. These letters constitute OSHA’s interpretation of the requirements discussed.Note that OSHA enforcement guidance may be affected by changes to OSHA rules. Also, from time totime we update our guidance in response to new information. To keep apprised of such developments,you can consult OSHA’s website at http://www.osha.gov.Letters of Interpretation constitute OSHA’s interpretation only of the requirements discussed and maynot be applicable to any situation not delineated within the original correspondence.Letter of interpretation related to section 1904.35(b)(2)(iv)OSHA 300 Log requirements versus HIPAA privacy requirements.August 2, 2004Mr. Bill KojolaIndustrial HygienistDepartment of Safety and HealthAFL-CIO815 Sixteenth St., NWWashington, DC 20006Dear Mr. Kojola:Thank you for your February 27, 2004 letter to the Occupational Safety and Health Administration(OSHA) regarding the Injury and Illness Recording and Reporting Requirements contained in 29CFR Part 1904. Your letter was forwarded to my office by Richard Fairfax, Director, Directorate ofEnforcement Programs. The Division of Recordkeeping Requirements, within my Directorate, isresponsible for the administration of the OSHA injury and illness recordkeeping system nationwide.Please excuse the delay in responding to your request.You state that employers are claiming they must remove all the names from the OSHA 300 Logbefore providing access in order to comply with the privacy requirements contained in the HealthInsurance Portability and Accountability Act (HIPAA). Specifically, you ask OSHA to clarify therecordkeeping requirements contained in 29 CFR Part 1904 vs. the HIPAA requirements.We do not believe that HIPAA provides a basis for employers to remove employees' names from theLog before providing access. Even if HIPAA is implicated by the employer's disclosure of the OSHALog, the statue and implementing regulation expressly permit the disclosure of protected healthinformation to the extent required by law. See 45 CFR 164.512(a). This exception for disclosuresrequired by law applies here because the Recordkeeping rule requires that employees, formeremployees, and employee representatives have access to the complete Log, including employeenames, except for privacy concern cases. See 29 CFR 1904.35(b)(2)(iv).§1904.35OSHA RECORDKEEPINGHANDBOOK153

Thank you for your interest in occupational safety and health. We hope you find this informationhelpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation lettersexplain these requirements and how they apply to particular circumstances, but they cannot createadditional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules.Also, from time to time we update our guidance in response to new information. To keep appraisedof such developments, you can consult OSHA's website at http://www.osha.gov. If you have any furtherquestions please contact the Division of Recordkeeping Requirements at (202) 693-1702.Sincerely,Keith Goddard, DirectorDirectorate of Evaluation and Analysis§1904.35154OSHA RECORDKEEPINGHANDBOOK

Letter of interpretation related to sections 1904.35, 1904.35(b)(2) and 1905.35(b)(2)(v) –Employee and employee representative access rights to OSHA 300 Log and OSHA 300-A Summary forms.November 7, 2003LaMont ByrdDirector Safety and Health DepartmentInternational Brotherhood of Teamsters25 Louisiana Avenue, N.W.Washington, D.C. 20001-2198Dear Mr. Byrd:Thank you for your April 4, 2003 letter to the Occupational Safety and Health Administration (OSHA)regarding the Injury and Illness Recording and Reporting Requirements contained in 29 CFR Part 1904.Your letter was forwarded to my office by Richard Fairfax, Director, Directorate of Enforcement Programs.The Division of Recordkeeping Requirements is responsible for the administration of the OSHAinjury and illness recordkeeping system nationwide. Please excuse the delay in responding to your request.In your letter, you ask OSHA to clarify the requirements under the access provisions for the OSHA injuryand illness records, 29 CFR 1904.35, specifically the OSHA 300-A, the Summary of Work-relatedInjuries and Illnesses. Under section 1904.35(b)(2), employees, former employees, their personal representatives,and their authorized employee representatives have the right to access the OSHA 300 Log Formand the OSHA 300-A Summary Form. The employer must give the requester a copy of the OSHA 300Form and the OSHA 300-A Form by the end of the next business day. In addition, employees, formeremployees, and their representatives have the right to access the OSHA 301 Incident Form with some limitationsand provision time frame differences, as set out in Section 1904.35(b)(2)(v) of the recordkeepingregulation.Thank you for your interest in occupational safety and health. We hope you find this information helpful.OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain theserequirements and how they apply to particular circumstances, but they cannot create additional employerobligations. This letter constitutes OSHA’s interpretation of the requirements discussed. Note that ourenforcement guidance may be affected by changes to OSHA rules. In addition, from time to time weupdate our guidance in response to new information. To keep appraised of such developments, you canconsult OSHA’s website at http://www.osha.gov. If you have any further questions, please contact theDivision of Recordkeeping Requirements, at 202-693-1702.Sincerely,Frank Frodyma, Acting DirectorDirectorate of Evaluation and Analysis§1904.35OSHA RECORDKEEPINGHANDBOOK155

Letter of interpretation related to sections 1904.29, 1904.29(a), 1904.29(b), 1904.29(b)(2), 1904.31, 1904.33,1904.35, 1904.40 and 1904.46 –Recording criteria for cases involving workers from a temporary help service, employee leasing service, orpersonnel supply service.June 23, 2003Mr. Edwin G. Foulke, Jr.Jackson Lewis LLP2100 Landmark Building301 North Main StreetGreenville, SC 29601-2122Dear Mr. Foulke:Thank you for your April 3, 2003 facsimile and April 10, 2003 letter to the Occupational Safety andHealth Administration (OSHA) regarding the Injury and Illness Recording and Reporting Requirementscontained in 29 CFR Part 1904. Specifically, you ask OSHA to clarify the recording criteria for casesinvolving workers from a temporary help service, employee leasing service, or personnel supply service.Your questions have been outlined below followed by OSHA’s response.Question 1: Under 29 CFR Section 1904.31, employers who supervise temporary or leased employees attheir facility are required to maintain the OSHA 300 Logs for those employees. With respect to thoseinjuries, can the employer keep a separate 300 Log for the company employees and one log for the temporaryor leased employees?Response: The log is to be kept for an establishment. Under Section 1904.46 Definitions, an establishmentis a single physical location where business is conducted or where services or industrial operations are performed.The controlling employer (using firm) may sub-divide the OSHA 300 Log to provideseparate listings of temporary workers, but must consider the separate listings to be one record for allrecordkeeping purposes, including access by government representatives, employees, former employees andemployee representatives as required by Section 1904.35 and 1904.40 in the Recordkeeping regulation.OSHA’s view is that a given establishment should have one OSHA Log. Injuries and illnesses for all thecovered employees at the establishment are then entered into that record to create a single OSHA 300-ASummary form at the end of the year.§1904.35Question 2: Under 29 CFR Section 1904.31, while the standard clearly indicates the 300 Logs must bemaintained for supervised temporary or leased employees, it does not indicate who maintains the 301documents or the first report of injuries, as well as the medical records on those employees. Also, if atemporary or leased employee has days away from work, it is normally the temporary or leased employeeprovider’s contractual responsibility to handle the medical treatment of the employee. The temporary orleased employee provider is the only person/entity to have the information on days away from work.Who is responsible for maintaining the 301 logs or the first report of injury forms as well as the medicalrecords for these employees, assuming that the employee provider can produce the required documents tothe employer for production in the time periods set forth in the standard?Response: Section 1904.29(a) says: “You must use OSHA 300, 300-A and 301 forms, or equivalentforms, for recordable injuries and illnesses.” In addition, 1904.29(b)(2) says: “You must complete anOSHA 301 Incident Report form, or an equivalent form, for each recordable injury or illness entered onthe OSHA 300 Log.” Therefore, when the workers from a temporary help service or leasing firm areunder the day-to-day supervision of the controlling party (using firm) the entire OSHA injury and illnessrecordkeeping responsibility belongs to the using firm.156OSHA RECORDKEEPINGHANDBOOK

Question 3: Using the facts in Question 2, it is also important to note that an injured temporary or leasedemployee, who requires days from work, may be replaced by another leased or temporary employee atthe work site. From time of the injury, the employer has no information about the return to work statusof the injured employee. In fact, the injured employee may be assigned to another employer once he orshe is able to return to work. How can the original employer keep accurate 300 Logs when the employeeprovider has sole access to information on days away from work and return to work status?Response: The controlling employer has the ultimate responsibility for making good-faith recordkeepingdeterminations regarding an injury and illness to any of those temporary employees they supervise on aday-to-day basis. Although controlling employers ultimately decide if and how a particular case should berecorded, their decision must not be an arbitrary one, but should be made in accordance with the requirementsof the Act, regulation, and the instructions on the forms. Therefore, the controlling employer mustmake reasonable efforts to acquire the necessary information in order to satisfy its Part 1904 recordkeepingrequirements. However, if the controlling employer is not able to obtain information from theemployer of the leased or temporary employee, the controlling employer should record the injury basedon whatever information is available to the controlling employer. The preamble contains a brief referenceabout OSHA’s expectation that the employers share information to produce accurate records, stating that“the two employers have shared responsibilities and may share information when there is a need to doso.” (Federal Register p. 6041)Finally, the last question you raised is whether your client or contractor has any requirements under therecordkeeping standard to provide the new contractor the current OSHA 300 Logs for that facility coveringthose employees who now work for that contractor? Since there was no change of your client’s businessownership, he or she needs only to retain the records as per 1904.33 and provide access under1904.35 and 1904.40.Thank you for your interest in occupational safety and health. We hope you find this information helpful.OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explain theserequirements and how they apply to particular circumstances, but they cannot create additional employerobligations. This letter constitutes OSHA’s interpretation of the requirements discussed. Note that ourenforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update ourguidance in response to new information. To keep appraised of such developments, you can consultOSHA’s website at http://www.osha.gov. If you have any further questions, please contact the Division ofRecordkeeping Requirements, at 202-693-1702.Sincerely,John L. HenshawAssistant Secretary§1904.35OSHA RECORDKEEPINGHANDBOOK157

Section 1904.36Prohibition against discrimination(66 FR 6132, Jan. 19, 2001)REGULATION: Section 1904.36Subpart D – Other OSHA injury and illness recordkeeping requirements(66 FR 6130, Jan. 19, 2001)Section 1904.36 Prohibition against discriminationSection 11(c) of the Act prohibits you from discriminatingagainst an employee for reporting a workrelatedfatality, injury or illness. That provision of theAct also protects the employee who files a safety andhealth complaint, asks for access to the Part 1904records, or otherwise exercises any rights affordedby the OSH Act.PREAMBLE DISCUSSION: Section 1904.36(66 FR 6050, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.36 Prohibition against discrimination...Section 1904.36 of the final rule makes clear thatSection 11(c) of the Act prohibits employers from discriminatingagainst employees for reporting workrelatedinjuries and illnesses. Section 1904.36 doesnot create a new obligation on employers. Instead, itclarifies that the OSH Act’s anti-discrimination protectionapplies to employees who seek to participate inthe recordkeeping process....OSHA has also included in the final rule, in section1904.36, a statement that section 11(c) of theOSH Act protects workers from employer retaliationfor filing a complaint, reporting an injury or illness,seeking access to records to which they are entitled,or otherwise exercising their rights under the rule.This section of the rule does not impose any newobligations on employers or create new rights foremployees that did not previously exist. In view ofthe evidence that retaliation against employees forreporting injuries is not uncommon and may be“growing,” this section is intended to serve the informationalneeds of employees who might not otherwisebe aware of their rights and to remind employersof their obligation not to discriminate....FREQUENTLY ASKED QUESTIONS: Section 1904.36 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.36 Prohibition against discriminationThis section will be developed as letters of interpretation become available.LETTERS OF INTERPRETATION: Section 1904.36Section 1904.36 Prohibition against discriminationThis section will be developed as letters of interpretation become available.§1904.36158OSHA RECORDKEEPINGHANDBOOK

Section 1904.37State recordkeeping regulations(66 FR 6132, Jan. 19, 2001)REGULATION: Section 1904.37Subpart D – Other OSHA injury and illness recordkeeping requirements(66 FR 6130, Jan. 19, 2001)Section 1904.37 State recordkeeping regulations(a) Basic requirement.Some States operate their own OSHA programs,under the authority of a State Plan approved byOSHA. States operating OSHA-approved State Plansmust have occupational injury and illness recordingand reporting requirements that are substantiallyidentical to the requirements in this Part (see 29 CFR1902.3(k), 29 CFR 1952.4 and 29 CFR 1956.10(i)).(b) Implementation.(1) State-Plan States must have the same requirementsas Federal OSHA for determining which injuriesand illnesses are recordable and how they arerecorded.(2) For other Part 1904 provisions (for example,industry exemptions, reporting of fatalities and hospitalizations,record retention, or employee involvement),State-Plan State requirements may be morestringent than or supplemental to the Federal requirements,but because of the unique nature of thenational recordkeeping program, States must consultwith and obtain approval of any such requirements.(3) Although State and local government employeesare not covered Federally, all State-Plan Statesmust provide coverage, and must develop injury andillness statistics, for these workers. State Plan recordingand reporting requirements for State and localgovernment entities may differ from those for the privatesector but must meet the requirements of paragraphs1904.37(b)(1) and (b)(2).(4) A State-Plan State may not issue a variance toa private sector employer and must recognize allvariances issued by Federal OSHA.(5) A State Plan State may only grant an injuryand illness recording and reporting variance to aState or local government employer within the Stateafter obtaining approval to grant the variance fromFederal OSHA.PREAMBLE DISCUSSION: Section 1904.37(66 FR 6060, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.37 State recordkeeping regulationsSection 1904.37 addresses the consistency of therecordkeeping and reporting requirements betweenFederal OSHA and those States where occupationalsafety and health enforcement is provided by anOSHA-approved State Plan. Currently, in 21 Statesand 2 territories, the State government has beengranted authority to operate a State OSHA Plan coveringboth the private and public (State and localgovernment) sectors under section 18 of the OSH Act(see the State Plan section of this preamble for a listingof these States). Two additional States currentlyoperate programs limited in scope to State and localgovernment employees only. State Plans, onceOSHA RECORDKEEPINGapproved, operate under authority of State law andprovide programs of standards, regulations andenforcement which must be “at least as effective” asthe Federal program. (State Plans must extend theircoverage to State and local government employees,workers not otherwise covered by Federal OSHA regulations.)Section 1904.37 of the final rule describeswhat State Plan recordkeeping requirements must beidentical to the Federal requirements, which Stateregulations may be different, and provides cross referencesto the State Plan regulations codified inSection 1902.3(k), 1952.4, and 1956.10(i). The provisionsof Subpart A of 29 CFR part 1952 specify theregulatory discretion of the State Plans in general,HANDBOOK159§1904.37

and section 1952.4 spells out the regulatory discretionof the State Plans specifically for the recordkeepingregulation.In the final rule, OSHA has rewritten the text ofthe corresponding proposed section and moved itinto Subpart D of the final rule. Under Section 18 ofthe OSH Act, a State Plan must require employers inthe State to make reports to the Secretary in thesame manner and to the same extent as if the Planwere not in effect. Final section 1904.37 makes clearthat States with approved State Plans must promulgatenew regulations that are substantially identicalto the final Federal rule. State Plans must haverecording and reporting regulations that imposeidentical requirements for the recordability of occupationalinjuries and illnesses and the manner inwhich they are entered. These requirements must bethe same for employers in all the States, whetherunder Federal or State Plan jurisdiction, and for Stateand local government employers covered onlythrough State Plans, to ensure that the occupationalinjury and illness data for the entire nation are uniformand consistent so that statistics that allow comparisonsbetween the States and between employerslocated in different States are created.For all of the other requirements of the Part 1904regulations, the regulations adopted by the StatePlans may be more stringent than or supplemental tothe Federal regulations, pursuant to paragraph1952.4(b). This means that the States’ recording andreporting regulations could differ in several waysfrom their Federal Part 1904 counterparts. For example,a State Plan could require employers to keeprecords for the State, even though those employersare within an industry exempted by the Federal rule.A State Plan could also require employers to keepadditional supplementary injury and illness information,require employers to report fatality and multiplehospitalization incidents within a shorter timeframethan Federal OSHA does, require other types of incidentsto be reported as they occur, or impose otherrequirements. While a State Plan must assure thatall employee participation and access rights areassured, the State may provide broader access torecords by employees and their representatives.However, because of the unique nature of the nationalrecordkeeping program, States must secureFederal OSHA approval for these enhancements....Because Federal OSHA does not provide coverageto State and local government employees, the State-Plan States may grant State recordkeeping variancesto the State and local governments under their jurisdiction.However, the State must obtain concurrencefrom Federal OSHA prior to issuing any such variances.In addition, the State-Plan States may notgrant variances to any other employers and must recognizeall 1904 variances granted by Federal OSHA.These steps are necessary to ensure that the injuryand illness data requirements are consistent fromState to State....Accordingly, the Part 1904 rules impose identicalrequirements where they are needed to create consistentinjury and illness statistics for the nation andallows the States to impose supplemental or morestringent requirements where doing so will not interferewith the maintenance of comprehensive and uniformnational statistics on workplace fatalities,injuries and illnesses.FREQUENTLY ASKED QUESTIONS: Section 1904.37 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.37 State recordkeeping regulationsQuestion 37-1. Do I have to follow these rules if myState has an OSHA-approved State Plan?If your workplace is located in a State that operatesan OSHA-approved State Plan, you must follow theregulations of the State. However, these States mustadopt occupational injury and illness recording andreporting requirements that are substantially identicalto the requirements in Part 1904. State Plan Statesmust have the same requirements as Federal OSHAfor determining which injuries and illnesses arerecordable and how they are recorded.Question 37-2. How may state regulations differfrom the Federal requirements?For Part 1904 provisions other than recording andreporting, State requirements may be more stringentthan or supplemental to the Federal requirements.For example, a State Plan could require employers tokeep records for the State, even though thoseemployers have 10 or fewer employees (1904.1) orare within an industry exempted by the Federal rule.A State Plan could also require employers to keepadditional supplementary injury and illness informa-§1904.37160OSHA RECORDKEEPINGHANDBOOK

tion, require employers to report fatality and multiplehospitalization incidents within a shorter time framethan Federal OSHA does (1904.39), require othertypes of incidents to be reported as they occur,require hearing loss to be recorded at a lower thresholdlevel during CY 2002 (1904.10(c)), or impose otherrequirements.Question 37-3. Are State and local governmentemployers covered by this rule?No, but they are covered under the equivalent Staterule in States that operate OSHA-approved StatePlans. State rules must cover these workplaces andrequire the recording and reporting of work-relatedinjuries and illnesses.Question 37-4. How can I find out if my State has anOSHA-approved plan?The following States have OSHA-approved plans: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.Connecticut, New Jersey, and New York have plansthat cover State and local government employeesonly.LETTERS OF INTERPRETATION: Section 1904.37Section 1904.37 State recordkeeping regulationsThis section will be developed as letters of interpretation become available.OSHA RECORDKEEPINGHANDBOOK161§1904.37

§1904.38Section 1904.38Variances from the recordkeeping rule(66 FR 6132, Jan. 19, 2001)REGULATION: Section 1904.38Subpart D – Other OSHA injury and illness recordkeeping requirements(66 FR 6130, Jan. 19, 2001)Section 1904.38 Variances from the recordkeeping rule(a) Basic requirement.If you wish to keep records in a different mannerfrom the manner prescribed by the Part 1904 regulations,you may submit a variance petition to theAssistant Secretary of Labor for Occupational Safetyand Health, U.S. Department of Labor, Washington,DC 20210. You can obtain a variance only if you canshow that your alternative recordkeeping system:(1) Collects the same information as this Partrequires;(2) Meets the purposes of the Act; and(3) Does not interfere with the administration ofthe Act.(b) Implementation.(1) What do I need to include in my variance petition?You must include the following items in your petition:(i) Your name and address;(ii) A list of the State(s) where the variance wouldbe used;(iii) The address(es) of the business establishment(s)involved;(iv) A description of why you are seeking a variance;(v) A description of the different recordkeepingprocedures you propose to use;(vi) A description of how your proposed procedureswill collect the same information as wouldbe collected by this Part and achieve the purposeof the Act; and(vii) A statement that you have informed youremployees of the petition by giving them or theirauthorized representative a copy of the petitionand by posting a statement summarizing the petitionin the same way as notices are posted underSection 1903.2(a).(2) How will the Assistant Secretary handle myvariance petition?The Assistant Secretary will take the followingsteps to process your variance petition.(i) The Assistant Secretary will offer your employeesand their authorized representatives an opportunityto submit written data, views, and argumentsabout your variance petition.(ii) The Assistant Secretary may allow the publicto comment on your variance petition by publishingthe petition in the Federal Register. If the petitionis published, the notice will establish a publiccomment period and may include a schedule for apublic meeting on the petition.(iii) After reviewing your variance petition and anycomments from your employees and the public,the Assistant Secretary will decide whether or notyour proposed recordkeeping procedures willmeet the purposes of the Act, will not otherwiseinterfere with the Act, and will provide the sameinformation as the Part 1904 regulations provide. Ifyour procedures meet these criteria, the AssistantSecretary may grant the variance subject to suchconditions as he or she finds appropriate.(iv) If the Assistant Secretary grants your variancepetition, OSHA will publish a notice in the FederalRegister to announce the variance. The notice willinclude the practices the variance allows you touse, any conditions that apply, and the reasons forallowing the variance.(3) If I apply for a variance, may I use my proposedrecordkeeping procedures while the AssistantSecretary is processing the variance petition?No, alternative recordkeeping practices are onlyallowed after the variance is approved. You mustcomply with the Part 1904 regulations while theAssistant Secretary is reviewing your variance petition.(4) If I have already been cited by OSHA for notfollowing the Part 1904 regulations, will my variancepetition have any effect on the citation and penalty?No, in addition, the Assistant Secretary may electnot to review your variance petition if it includes anelement for which you have been cited and the citationis still under review by a court, an AdministrativeLaw Judge (ALJ), or the OSH Review Commission.162OSHA RECORDKEEPINGHANDBOOK

(5) If I receive a variance, may the AssistantSecretary revoke the variance at a later date?Yes, the Assistant Secretary may revoke your varianceif he or she has good cause. The proceduresrevoking a variance will follow the same process asOSHA uses for reviewing variance petitions, as outlinedin paragraph 1904.38(b)(2). Except in cases ofwillfulness or where necessary for public safety, theAssistant Secretary will:(i) Notify you in writing of the facts or conductthat may warrant revocation of your variance; and(ii) Provide you, your employees, and authorizedemployee representatives with an opportunity toparticipate in the revocation procedures.§1904.38PREAMBLE DISCUSSION: Section 1904.38(66 FR 6061-6062, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.38 Variances from the recordkeepingrule.Section 1904.38 of the final rule explains the proceduresemployers must follow in those rare instanceswhere they request that OSHA grant them a varianceor exception to the recordkeeping rules in Part 1904.The rule contains these procedures to allow anemployer who wishes to maintain records in a mannerthat is different from the approach required bythe rules in Part 1904 to petition the AssistantSecretary. Section 1904.8 allows the employer toapply to the Assistant Secretary for OSHA andrequest a Part 1904 variance if he or she can showthat the alternative recordkeeping system: (1)Collects the same information as this Part requires;(2) Meets the purposes of the Act; and (3) Does notinterfere with the administration of the Act.The variance petition must include several items,namely the employer’s name and address; a list ofthe State(s) where the variance would be used; theaddresses of the business establishments involved; adescription of why the employer is seeking a variance;a description of the different recordkeepingprocedures the employer is proposing to use; adescription of how the employer’s proposed procedureswill collect the same information as would becollected by the Part 1904 requirements and achievethe purpose of the Act; and a statement that theemployer has informed its employees of the petitionby giving them or their authorized representative acopy of the petition and by posting a statement summarizingthe petition in the same way notices areposted under paragraph 1903.2(a).The final rule describes how the AssistantSecretary will handle the variance petition by takingthe following steps:• The Assistant Secretary will offer employees andtheir authorized representatives an opportunity tocomment on the variance petition. The employeesand their authorized representatives will be allowedto submit written data, views, and arguments aboutthe petition.• The Assistant Secretary may allow the public tocomment on the variance petition by publishing thepetition in the Federal Register. If the petition is published,the notice will establish a public commentperiod and may include a schedule for a public meetingon the petition.• After reviewing the variance petition and any commentsfrom employees and the public, the AssistantSecretary will decide whether or not the proposedrecordkeeping procedures will meet the purposes ofthe Act, will not otherwise interfere with the Act, andwill provide the same information as the Part 1904regulations provide. If the procedures meet these criteria,the Assistant Secretary may grant the variancesubject to such conditions as he or she finds appropriate.• If the Assistant Secretary grants the variance petition,OSHA will publish a notice in the FederalRegister to announce the variance. The notice willinclude the practices the variance allows, any conditionsthat apply, and the reasons for allowing thevariance.The final rule makes clear that the employer maynot use the proposed recordkeeping procedureswhile the Assistant Secretary is processing the variancepetition and must wait until the variance isapproved. The rule also provides that, if the AssistantSecretary denies the petition, the employer willreceive notice of the denial within a reasonable timeand establishes that a variance petition has no effecton the citation and penalty for a citation that hasbeen previously issued by OSHA and that theAssistant Secretary may elect not to review a variancepetition if it includes an element which has beenOSHA RECORDKEEPINGHANDBOOK163

§1904.38cited and the citation is still under review by a court,an Administrative Law Judge (ALJ), or the OSHReview Commission.The final rule also states that the AssistantSecretary may revoke a variance at a later date if theAssistant Secretary has good cause to do so, andthat the procedures for revoking a variance will followthe same process as OSHA uses for reviewingvariance petitions. Except in cases of willfulness orwhere necessary for public safety, the AssistantSecretary will: Notify the employer in writing of thefacts or conduct that may warrant revocation of avariance and provide the employer, employees, andauthorized employee representatives with an opportunityto participate in the revocation procedures.......This section of the final rule codifies the shift inresponsibilities from the BLS to OSHA with regard tovariances....The final rule adds several provisions to those ofthe former rule. They include (1) the identification ofpetitioning employers’ pending citations in State planstates, (2) the discretion given to OSHA not to considera petition if a citation on the same subject matteris pending, (3) the clarification that OSHA mayprovide additional notice via the Federal Register andopportunity for comment, (4) the clarification thatvariances have only prospective effect, (5) the opportunityof employees and their representatives to participatein revocation procedures, and (6) the voidingof all previous variances and exceptions....OSHA has decided, after further consideration, tocontinue to include a specific recordkeeping variancesection in the final rule, and not to require employerswho wish a recordkeeping variance or exception tofollow the more rigorous procedures in 29 CFR Part1905. The procedures in Part 1905, which were developedfor rules issued under sections 6 and 16 of theOSH Act, may not be appropriate for rules issuedunder section 8 of the Act, such as this recordkeepingrule.The final rule thus retains a section on varianceprocedures for the recordkeeping rule. OSHAbelieves that few variances or exceptions will begranted under the variance procedures of the finalrule because other provisions of the final rule alreadyreflect many of the alternative recordkeeping proceduresthat employers have asked to use over theyears, such as electronic storage and transmission ofdata, centralized record maintenance, and the use ofalternative recordkeeping forms. Because thesechanges have been made to other sections of thefinal rule, there should be little demand for variancesor exceptions....The final changes to the variance section of theformer rule are minor. The primary change is tomake clear that OSHA, rather than the BLS, has theresponsibility for granting recordkeeping variancesor exceptions....Paragraph (i) of the final rule supports paragraph(c)(7) from this same section because it provides amechanism for giving OSHA notice of a citationpending before a state agency. Paragraph (i) alsoclarifies that variances only apply to future events,not to past practices. Paragraph (j) of section 1904.38of the final rule nullifies all prior variances and exceptions.OSHA believes that it is important to beginwith a “clean slate” when the final recordkeepingrule goes into effect. Employers with existing variancescan repetition the agency if the final rule doesnot address their needs. Another addition to the finalrule makes explicit that OSHA can provide additionalpublic notice via the Federal Register and may offeradditional opportunity for public comment. A finaladdition recognizes and makes clear that employeescan participate in variance revocation proceedings.FREQUENTLY ASKED QUESTIONS: Section 1904.38 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.38 Variances from the recordkeeping ruleThis section will be developed as letters of interpretation become available.LETTERS OF INTERPRETATION: Section 1904.38Section 1904.38 Variances from the recordkeeping ruleThis section will be developed as letters of interpretation become available.164OSHA RECORDKEEPINGHANDBOOK

Section 1904.39Reporting fatalities and multiple hospitalizationincidents to OSHA(66 FR 6133, Jan. 19, 2001)REGULATION: Section 1904.39Subpart E – Reporting fatality, injury and illness information to the government(66 FR 6133, Jan. 19, 2001)§1904.39Section 1904.39 Reporting fatalities and multiple hospitalization incidents to OSHA(a) Basic requirement.Within eight (8) hours after the death of anyemployee from a work-related incident or the inpatienthospitalization of three or more employees asa result of a work-related incident, you must orallyreport the fatality/multiple hospitalization by telephoneor in person to the Area Office of theOccupational Safety and Health Administration(OSHA), U.S. Department of Labor, that is nearest tothe site of the incident. You may also use the OSHAtoll-free central telephone number, 1-800-321-OSHA(1-800-321-6742).(b) Implementation.(1) If the Area Office is closed, may I report theincident by leaving a message on OSHA’s answeringmachine, faxing the area office, or sending an e-mail?No, if you can’t talk to a person at the Area Office,you must report the fatality or multiple hospitalizationincident using the 800 number.(2) What information do I need to give to OSHAabout the incident?You must give OSHA the following informationfor each fatality or multiple hospitalization incident:(i) The establishment name;(ii) The location of the incident;(iii) The time of the incident;(iv) The number of fatalities or hospitalizedemployees;(v) The names of any injured employees;(vi) Your contact person and his or her phonenumber; and(vii) A brief description of the incident.(3) Do I have to report every fatality or multiplehospitalization incident resulting from a motor vehicleaccident?No, you do not have to report all of these incidents.If the motor vehicle accident occurs on a publicstreet or highway, and does not occur in a constructionwork zone, you do not have to report theincident to OSHA. However, these injuries must berecorded on your OSHA injury and illness records, ifyou are required to keep such records.(4) Do I have to report a fatality or multiple hospitalizationincident that occurs on a commercial orpublic transportation system?No, you do not have to call OSHA to report a fatalityor multiple hospitalization incident if it involves acommercial airplane, train, subway or bus accident.However, these injuries must be recorded on yourOSHA injury and illness records, if you are requiredto keep such records.(5) Do I have to report a fatality caused by a heartattack at work?Yes, your local OSHA Area Office director willdecide whether to investigate the incident, dependingon the circumstances of the heart attack.(6) Do I have to report a fatality or hospitalizationthat occurs long after the incident?No, you must only report each fatality or multiplehospitalization incident that occurs within thirty (30)days of an incident.(7) What if I don’t learn about an incident rightaway?If you do not learn of a reportable incident at thetime it occurs and the incident would otherwise bereportable under paragraphs (a) and (b) of this section,you must make the report within eight (8) hoursof the time the incident is reported to you or to anyof your agent(s) or employee(s).OSHA RECORDKEEPINGHANDBOOK165

§1904.39PREAMBLE DISCUSSION: Section 1904.39(66 FR 6062-6065, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.39 Reporting fatalities and multiplehospitalization incidents to OSHAParagraph (a) of section 1904.39 of the final rulerequires an employer to report work-related eventsor exposures involving fatalities or the in-patient hospitalizationof three or more employees to OSHA.The final rule requires the employer, within 8 hoursafter the death of any employee from a work-relatedincident or the in-patient hospitalization of three ormore employees as a result of a work-related incident,to orally report the fatality/multiple hospitalizationby telephone or in person to the Area Office ofthe Occupational Safety and Health Administration(OSHA), or to OSHA via the OSHA toll-free centraltelephone number, 1-800-321-6742.The final rule makes clear in paragraph1904.39(b)(1) that an employer may not report theincident by leaving a message on OSHA’s answeringmachine, faxing the Area Office, or sending an e-mail,but may report the fatality or multiple hospitalizationincident using the OSHA 800 number. The employeris required by paragraph 1904.39(b)(2) to report severalitems of information for each fatality or multiplehospitalization incident: the establishment name, thelocation of the incident, the time of the incident, thenumber of fatalities or hospitalized employees, thenames of any injured employees, the employer’scontact person and his or her phone number, and abrief description of the incident.As stipulated in paragraph 1904.39(b)(3), the finalrule does not require an employer to call OSHA toreport a fatality or multiple hospitalization incident ifit involves a motor vehicle accident that occurs on apublic street or highway and does not occur in a constructionwork zone. Employers are also not requiredto report a commercial airplane, train, subway or busaccident (paragraph 1904.39(b)(4)). However, theseinjuries must still be recorded on the employer’sOSHA 300 and 301 forms, if the employer is requiredto keep such forms. Because employers are oftenunsure about whether they must report a fatalitycaused by a heart attack at work, the final rule stipulates,at paragraph 1904.39(b)(5), that such heartattacks must be reported, and states that the localOSHA Area Office director will decide whether toinvestigate the incident, depending on the circumstancesof the heart attack.Paragraph 1904.39(b)(6) of the final rule clarifiesthat the employer is not required to report a fatalityor hospitalization that occurs more than thirty (30)days after an incident, and paragraph 1904.39(b)(7)states that, if the employer does not learn about areportable incident when it occurs, the employermust make the report within 8 hours of the time theincident is reported to the employer or to any of theemployer’s agents or employees.Section 1904.39 of the final rule...clarifies that thereport an employer makes to OSHA on a workplacefatality or multiple hospitalization incident must bean oral report. As the regulatory text makes clear, theemployer must make such reports to OSHA by telephone(either to the nearest Area Office or to the tollfree800 number) or in person. Third, the employermay not merely leave a message at the OSHA AreaOffice; instead, the employer must actually speak toan OSHA representative. Fourth, this section of therule lists OSHA’s 800 number for the convenience ofemployers and to allow flexibility in the event thatthe employer has difficulty reaching the OSHA AreaOffice. Fifth, this section eliminates the formerrequirement that employers report fatalities or multiplehospitalizations that result from an accident on acommercial or public transportation system, such asan airplane accident or one that occurs in a motorvehicle accident on a public highway or street (exceptfor those occurring in a construction work zone,which must still be reported)....Making oral reports of fatalities or multiple hospitalizationincidents and the OSHA 800 number. Theformer rule required an employer to “orally report”fatality or multiple hospitalization incidents to OSHAby telephone or in person, although the rule did notspecify that messages left on the Area Office answeringmachine or sent by e-mail would not suffice.Since the purpose of this notification is to alert OSHAto the occurrence of an accident that may warrantimmediate investigation, such notification must bemade orally to a “live” person....It is essential for OSHA to speak promptly to anyemployer whose employee(s) have experienced afatality or multiple hospitalization incident to determinewhether the Agency needs to begin an investi-166OSHA RECORDKEEPINGHANDBOOK

gation. Therefore, the final rule does not permit employersmerely to leave a message on an answeringmachine, send a fax, or transmit an e-mail message.None of these options allows an Agency representativeto interact with the employer to clarify the particularsof the catastrophic incident. Additionally, if theArea Office were closed for the weekend, a holiday,or for some other reason, OSHA might not learn ofthe incident for several days if electronic or facsimiletransmission were permitted. Paragraph 1904.39(b)(1)of the final rule makes this clear.......The employer may use whatever method he orshe chooses, at any time, as long as he or she is ableto speak in person to an OSHA representative or the800 number operator....This final rule also includes the 800 number in thetext of the regulation. OSHA has decided to includethe number in the regulatory text at this time to providean easy reference for employers. OSHA will alsocontinue to include the 800 number in any interpretivematerials, guidelines or outreach materials that itpublishes to help employers comply with the reportingrequirement.......OSHA agrees that it would be impractical toimpose on one employer a duty to report cases ofmultiple hospitalizations of employees who work forother employers. Although such a reporting requirementwould provide OSHA with information that theAgency could use to inspect some incidents that itmight otherwise not know about, OSHA believes thatthe fatality and catastrophe provisions of the finalrule will capture most such incidents. Accordingly,OSHA has not included this proposed provision inthe final rule.......OSHA has decided to continue the 8-hourrequirement....OSHA agrees with...commenters that there is noneed for an employer to report a fatality or multiplehospitalization incident when OSHA is clearly notgoing to make an investigation. When a worker iskilled or injured in a motor vehicle accident on a publichighway or street, OSHA is only likely to investigatethe incident if it occurred in a highway constructionzone. Likewise, when a worker is killed or injuredin an airplane crash, a train wreck, or a subway accident,OSHA does not investigate, and there is thusno need for the employer to report the incident toOSHA. The text of paragraphs 1904.39(b)(3) and (4)of the final rule clarifies that an employer is not requiredto report these incidents to OSHA. These incidentsare normally investigated by other agencies,including local transit authorities, local or Statepolice, State transportation officials, and the U.S.Department of Transportation.However, although there is no need to reportthese incidents to OSHA under the 8-hour reportingrequirement, any fatalities and hospitalizationscaused by motor vehicle accidents, as well as commercialor public transportation accidents, are recordableif they meet OSHA’s recordability criteria. Thesecases should be captured by the Nation’s occupationalfatality and injury statistics and be included on theemployer’s injury and illness forms. The statisticsneed to be complete, so that OSHA, BLS, and thepublic can see where and how employees are beingmade ill, injured and killed. Accordingly, the final ruleincludes a sentence clarifying that employers are stillrequired to record work-related fatalities and injuriesthat occur as a result of public transportation accidentsand injuries.......[T]he final rule provides provisions that requirean employer to report a fatality or multiple hospitalizationincident that occurs in a construction zone ona public highway or street.......If three or more workers are hospitalized overnight,whether for treatment or observation, the accidentis clearly of a catastrophic nature, and OSHAneeds to learn about it promptly. Additionally, theinpatient distinction provides an easy-to-understandtrigger for reporting. In many instances, a patientwho is admitted for observation as an inpatient laterreceives treatment after the true nature and extent ofthe injury becomes known. At the time of the incident,when reporting is most useful, the employer isunlikely to know the details about the treatment thatthe worker is receiving (e.g., observation only ormedical treatment). However, the employer will probablyknow that the employee has been admitted tothe hospital as an inpatient.......[T]he final rule requires reporting within 8 hoursof the time any agent or employee of the employerbecomes aware of the incident. It is the employer’sresponsibility to ensure that appropriate instructionsand procedures are in place so that corporate officers,managers,supervisors, medical/health personnel,safety officers, receptionists, switchboard personnel,and other employees or agents of the companywho learn of employee deaths or multiple hospitalizationsknow that the company must make atimely report to OSHA.§1904.39OSHA RECORDKEEPINGHANDBOOK167

§1904.39FREQUENTLY ASKED QUESTIONS: Section 1904.39 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.39 Reporting fatalities and multiple hospitalization incidents to OSHAQuestion 39-1. When a work-related heart attackoccurs in the workplace and the employee dies oneor more days later, how should the case be reportedto OSHA?The employer must orally report a work-related fatalityby telephone or in person to the OSHA Area Officenearest to the site of the incident. The employer mustreport the fatality within eight hours of the employee’sdeath in cases where the death occurs within 30days of the incident. The employer need not report adeath occurring more than 30 days after a work-relatedincident.Question 39-2. What is considered a “constructionwork zone” for purposes of section 1904.39(b)(3)?A “construction work zone” for purposes of Section1904.39(b)(3) is an area of a street or highway whereconstruction activities are taking place, and is typicallymarked by signs, channeling devices, barriers,pavement markings and/or work vehicles. The workzone extends from the first warning sign or rotating/strobelights on a vehicle to the “END ROADWORK” sign or the last temporary traffic controldevice.LETTERS OF INTERPRETATION: Section 1904.39Section 1904.39 Reporting fatalities and multiple hospitalization incidents to OSHAThis section will be developed as letters of interpretation become available.168OSHA RECORDKEEPINGHANDBOOK

Section 1904.40Providing records to government representatives(66 FR 6134, Jan. 19, 2001)REGULATION: Section 1904.40Subpart E – Reporting fatality, injury and illness information to the government(66 FR 6133, Jan. 19, 2001)Section 1904.40 Providing records to government representatives(a) Basic requirement.When an authorized government representativeasks for the records you keep under Part 1904, youmust provide copies of the records within four (4)business hours.(b) Implementation.(1) What government representatives have theright to get copies of my Part 1904 records?The government representatives authorized toreceive the records are:(i) A representative of the Secretary of Labor conductingan inspection or investigation under theAct;(ii) A representative of the Secretary of Health andHuman Services (including the National Institutefor Occupational Safety and Health -- NIOSH) conductingan investigation under section 20(b) of theAct, or(iii) A representative of a State agency responsiblefor administering a State plan approved undersection 18 of the Act.(2) Do I have to produce the records within four (4)hours if my records are kept at a location in a differenttime zone?OSHA will consider your response to be timely ifyou give the records to the government representativewithin four (4) business hours of the request. Ifyou maintain the records at a location in a differenttime zone, you may use the business hours of theestablishment at which the records are located whencalculating the deadline.§1904.40PREAMBLE DISCUSSION: Section 1904.40(66 FR 6065-6069, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.40 Providing records to governmentrepresentativesUnder the final rule, employers must provide a completecopy of any records required by Part 1904 to anauthorized government representative, including theForm 300 (Log), the Form 300A (Summary), the confidentiallisting of privacy concern cases along withthe names of the injured or ill privacy case workers,and the Form 301 (Incident Report), when the representativeasks for the records during a workplacesafety and health inspection....The final regulatory text of paragraph (a) of section1904.40 requires an employer to provide anauthorized government representative with recordskept under Part 1904 within four business hours. Asstated in paragraph 1904.40(b)(1), the authorized governmentrepresentatives who have a right to obtainthe Part 1904 records are a representative of theSecretary of Labor conducting an inspection or investigationunder the Act, a representative of theSecretary of Health and Human Services (includingthe National Institute for Occupational Safety andHealth (NIOSH)) conducting an investigation underSection 20(b) of the Act, or a representative of a Stateagency responsible for administering a State planapproved under section 18 of the Act. The government’sright to ask for such records is limited by thejurisdiction of that Agency. For example, a representativeof an OSHA approved State plan could onlyask for the records when visiting an establishmentwithin that state.The final rule allows the employer to take intoaccount difficulties that may be encountered if therecords are kept at a location in a different time zonefrom the establishment where the government representativehas asked for the records. If the employerOSHA RECORDKEEPINGHANDBOOK169

§1904.40maintains the records at a location in a different timezone, OSHA will use the business hours of the establishmentat which the records are located when calculatingthe deadline, as permitted by paragraph1904.40(b)(2).......[C]ommenters appear to be arguing that includinga subpoena or warrant enforcement mechanismin the text of the rule is necessary to adequately protecttheir Fourth Amendment right to privacy. This isnot the case, however. The Fourth Amendment protectsagainst “unreasonable” intrusions by the governmentinto private places and things. Reportingrules that do not depend on subpoena or warrantpowers are not “unreasonable” per se. See e.g.,California Bankers Ass’n v. Shultz, 416 U.S. 21, 67(1974) (upholding reporting regulation issued underthe Bank Secrecy Act of 1970 that did not provide forsubpoenas or warrants where the “information wassufficiently described and limited in nature and sufficientlyrelated to a tenable Congressional determination”that the information would have a high degreeof usefulness in criminal, tax, or regulatory investigationsor proceedings)....[T]he text of the rule is silent as to the enforcementmechanism OSHA will use in what OSHAhopes will be the rare case in which an employerdoes not provide a copy of the records on request.OSHA may proceed by applying for a warrant, or byadministrative subpoena, or by citation where doingso is consistent with the Fourth Amendment. OSHAnotes that employers have a Fourth Amendmentright to require a warrant before an OSHA representativemay physically enter a business establishmentfor an inspection.The totality of circumstances surrounding a warrantlessor “subpoena-less” administrative investigationor investigation program determines its reasonableness.For example, in McLaughlin v. A.B. Chance,842 F.2d at 727 (4th Cir. 1988), the Fourth Circuitupheld a records access citation against an employerwho refused an OSHA inspector access to its OSHALogs and forms on the ground that it had a right toinsist on a warrant or subpoena; the Court held thatthe inspector had such a right because a summary ofthe information was posted annually on the employeebulletin board and the inspector was lawfully onthe premises to investigate a safety complaint. InNew York v. Burger, 482 U.S. 691, 702-703 (1987), theSupreme Court noted that agencies may gather informationwithout a warrant, subpoena, or consent ifthe information would serve a substantial governmentalinterest, a warrantless (or subpoena-less)inspection is necessary to further the regulatoryscheme, and the agency acts pursuant to an inspectionprogram that is limited in time, place, and scope.The Burger court upheld a warrantless inspection ofrecords during an administrative inspection of businesspremises. See also Kings Island (noting thatunder Burger a warrantless or subpoena-less inspectionof records might be reasonable, but concludingthat the facts of the case did not satisfy Burger analysis);Emerson Electric (noting that under CaliforniaBankers an agency may gain access to informationwithout a subpoena or warrant but concluding thatthe facts of that case were not comparable to thosereviewed in California Bankers).Given that some warrantless and subpoena-lesssearches during an OSHA inspection may be reasonablewhile others may not, depending on the circumstancesof the individual inspection, OSHA has decidednot to include a subpoena or warrant enforcementmechanism in the text of the rule. However, OSHAwill continue to enforce the rule within the parametersof applicable court decisions....This section of the final rule does not give unfetteredaccess to the records by the public, but simplyallows a government inspector to use the recordsduring the course of a safety and health inspection.As discussed above in the section covering access tothe records for employees, former employees, andemployee representatives (Section 1904.35), OSHAdoes not consider the Forms 300 and 301 to be medicalrecords, for the following reasons. First, they donot have to be completed by a physician or otherlicensed health care professional. Second, they donot contain the detailed diagnostic and treatmentinformation usually found in medical records. Finally,the injuries and illnesses found in the records areusually widely known among other employees at theworkplace where the injured or ill worker works; infact, these co-workers may even have witnessed theaccident that gave rise to the injury or illness.OSHA does not agree that its inspectors shouldbe required to obtain permission from all injured orill employees before accessing the full records.Gaining this permission would make it essentiallyimpossible to obtain full access to the records, whichis needed to perform a meaningful workplace investigation.For example, an inspector would not be ableto obtain the names of employees who were nolonger working for the company to perform follow-upinterviews about the specifics of their injuries and illnesses.The names of the injured or ill workers areneeded to allow the government inspector to interviewthe injured and ill workers and determine thehazardous circumstances that led to their injury or ill-170OSHA RECORDKEEPINGHANDBOOK

ness. The government inspector may also need theemployee’s names to access personnel and medicalrecords if needed (medical records can only beaccessed after the inspector obtains a medical accessorder). Additionally, refusing the inspector access tothe names of the injured and ill workers would effectivelyprohibit any audit of the Part 1904 records bythe government, a practice necessary to verify theaccuracy of employer recordkeeping in general andto identify problems that employers may be havingin keeping records under OSHA’s recordkeepingrules...since OSHA inspectors do not allow others tosee the medical records they have accessed, the privacyof employees is not compromised by CSHOaccess to the records....Paragraphs 1904.40(a) and (b) of the final rulerequire records to be made available to a governmentinspector within 4 business hours of an oralrequest for the records, using the business hours ofthe establishment at which the records are located....OSHA has concluded that 4 hours is a reasonableand workable length of time for employers to respondto governmental requests for records. The4-hour time period for providing records from a centralizedsource strikes a balance between the practicallimitations inherent in record maintenance andthe government official’s need to obtain theserecords and use the information to conduct a workplaceinspection....OSHA believes that it is essential for employers tohave systems and procedures that can produce therecords within the 4-hour time. However, the Agencyrealizes that there may be unusual or unique circumstanceswhere the employer cannot comply. Forexample, if the records are kept by a health care professionaland that person is providing emergencycare to an injured worker, the employer may need todelay production of the records. In such a situation,the OSHA inspector may allow the employer additionaltime.If a government representative requests recordsof an establishment, but those records are kept atanother location, the 4-hour period can be measuredin accordance with the normal business hours at thelocation where the records are being kept.......Under the final rule, the employer has 4 regularbusiness hours at the location at which the recordsare kept in which to comply with the request of agovernment representative.OSHA has designed the final rule to give eachemployer considerable flexibility in maintainingrecords. It permits an employer to centralize itsrecords, to use computer and facsimile technologies,and to hire a third party to keep its records. However,an employer who chooses these options must alsoensure that they are sufficiently reliable to complywith this rule. In other words, the flexibility providedto employers for recordkeeping must not impede theAgency’s ability to obtain and use the records.......[I]n this final rule, OSHA requires the employerto provide copies of the records requested to authorizedgovernment representatives....§1904.40FREQUENTLY ASKED QUESTIONS: Section 1904.40 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.40 Providing records to government representativesThis section will be developed as letters of interpretation become available.LETTERS OF INTERPRETATION: Section 1904.40Section 1904.40 Providing records to government representativesOSHA requirements are set by statute, standards and regulations. Letters of interpretation explainthese requirements and how they apply to particular circumstances, but they cannot create additionalemployer obligations. These letters constitute OSHA’s interpretation of the requirements discussed.Note that OSHA enforcement guidance may be affected by changes to OSHA rules. Also, from time totime we update our guidance in response to new information. To keep apprised of such developments,you can consult OSHA’s website at http://www.osha.gov.Letters of Interpretation constitute OSHA’s interpretation only of the requirements discussed and maynot be applicable to any situation not delineated within the original correspondence.Letter of interpretation related to sections 1904.29, 1904.29(a), 1904.29(b), 1904.29(b)(2), 1904.31, 1904.33,1904.40 and 1904.46 –Recording criteria for cases involving workers from a temporary help service, employee leasing service, orpersonnel supply service.OSHA RECORDKEEPINGHANDBOOK171

June 23, 2003Mr. Edwin G. Foulke, Jr.Jackson Lewis LLP2100 Landmark Building301 North Main StreetGreenville, SC 29601-2122§1904.40Dear Mr. Foulke:Thank you for your April 3, 2003 facsimile and April 10, 2003 letter to the Occupational Safety andHealth Administration (OSHA) regarding the Injury and Illness Recording and Reporting Requirementscontained in 29 CFR Part 1904. Specifically, you ask OSHA to clarify the recording criteria for casesinvolving workers from a temporary help service, employee leasing service, or personnel supply service.Your questions have been outlined below followed by OSHA’s response.Question 1: Under 29 CFR Section 1904.31, employers who supervise temporary or leased employees attheir facility are required to maintain the OSHA 300 Logs for those employees. With respect to thoseinjuries, can the employer keep a separate 300 Log for the company employees and one log for the temporaryor leased employees?Response: The log is to be kept for an establishment. Under Section 1904.46 Definitions, an establishmentis a single physical location where business is conducted or where services or industrial operationsare performed. The controlling employer (using firm) may sub-divide the OSHA 300 Log to provideseparate listings of temporary workers, but must consider the separate listings to be one record for allrecordkeeping purposes, including access by government representatives, employees, former employeesand employee representatives as required by Section 1904.35 and 1904.40 in the Recordkeeping regulation.OSHA’s view is that a given establishment should have one OSHA Log. Injuries and illnesses for allthe covered employees at the establishment are then entered into that record to create a single OSHA300-A Summary form at the end of the year.Question 2: Under 29 CFR Section 1904.31, while the standard clearly indicates the 300 Logs must bemaintained for supervised temporary or leased employees, it does not indicate who maintains the 301documents or the first report of injuries, as well as the medical records on those employees. Also, if atemporary or leased employee has days away from work, it is normally the temporary or leased employeeprovider’s contractual responsibility to handle the medical treatment of the employee. The temporaryor leased employee provider is the only person/entity to have the information on days away from work.Who is responsible for maintaining the 301 logs or the first report of injury forms as well as the medicalrecords for these employees, assuming that the employee provider can produce the required documentsto the employer for production in the time periods set forth in the standard?Response: Section 1904.29(a) says: “You must use OSHA 300, 300-A and 301 forms, or equivalentforms, for recordable injuries and illnesses.” In addition, 1904.29(b)(2) says: “You must complete anOSHA 301 Incident Report form, or an equivalent form, for each recordable injury or illness entered onthe OSHA 300 Log.” Therefore, when the workers from a temporary help service or leasing firm areunder the day-to-day supervision of the controlling party (using firm) the entire OSHA injury and illnessrecordkeeping responsibility belongs to the using firm.Question 3: Using the facts in Question 2, it is also important to note that an injured temporary orleased employee, who requires days from work, may be replaced by another leased or temporaryemployee at the work site. From time of the injury, the employer has no information about the return towork status of the injured employee. In fact, the injured employee may be assigned to another employeronce he or she is able to return to work. How can the original employer keep accurate 300 Logs whenthe employee provider has sole access to information on days away from work and return to work status?172OSHA RECORDKEEPINGHANDBOOK

Response: The controlling employer has the ultimate responsibility for making good-faith recordkeepingdeterminations regarding an injury and illness to any of those temporary employees they supervise on aday-to-day basis. Although controlling employers ultimately decide if and how a particular case shouldbe recorded, their decision must not be an arbitrary one, but should be made in accordance with therequirements of the Act, regulation, and the instructions on the forms. Therefore, the controllingemployer must make reasonable efforts to acquire the necessary information in order to satisfy its Part1904 recordkeeping requirements. However, if the controlling employer is not able to obtain informationfrom the employer of the leased or temporary employee, the controlling employer should record theinjury based on whatever information is available to the controlling employer. The preamble contains abrief reference about OSHA’s expectation that the employers share information to produce accuraterecords, stating that “the two employers have shared responsibilities and may share information whenthere is a need to do so.” (Federal Register p. 6041)Finally, the last question you raised is whether your client or contractor has any requirements under therecordkeeping standard to provide the new contractor the current OSHA 300 Logs for that facility coveringthose employees who now work for that contractor? Since there was no change of your client’sbusiness ownership, he or she needs only to retain the records as per 1904.33 and provide access under1904.35 and 1904.40.§1904.40Thank you for your interest in occupational safety and health. We hope you find this information helpful.OSHA requirements are set by statute, standards, and regulations. Our interpretation letters explainthese requirements and how they apply to particular circumstances, but they cannot create additionalemployer obligations. This letter constitutes OSHA’s interpretation of the requirements discussed. Notethat our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time weupdate our guidance in response to new information. To keep appraised of such developments, you canconsult OSHA’s website at http://www.osha.gov. If you have any further questions, please contact theDivision of Recordkeeping Requirements, at 202-693-1702.Sincerely,John L. HenshawAssistant SecretaryOSHA RECORDKEEPINGHANDBOOK173

Section 1904.41Annual OSHA injury and illness survey of tenor more employers(66 FR 6134, Jan. 19, 2001)REGULATION: Section 1904.41Subpart E – Reporting fatality, injury and illness information to the government(66 FR 6133, Jan. 19, 2001)§1904.41Section 1904.41 Annual OSHA injury and illness survey of ten or more employers(a) Basic requirement.If you receive OSHA’s annual survey form, youmust fill it out and send it to OSHA or OSHA’sdesignee, as stated on the survey form. You mustreport the following information for the year describedon the form:(1) the number of workers you employed;(2) the number of hours worked by your employees;and(3) the requested information from the recordsthat you keep under Part 1904.(b) Implementation.(1) Does every employer have to send data toOSHA?No, each year, OSHA sends injury and illness surveyforms to employers in certain industries. In anyyear, some employers will receive an OSHA surveyform and others will not. You do not have to sendinjury and illness data to OSHA unless you receive asurvey form.(2) How quickly do I need to respond to an OSHAsurvey form?You must send the survey reports to OSHA, orOSHA’s designee, by mail or other means describedin the survey form, within 30 calendar days, or by thedate stated in the survey form, whichever is later.(3) Do I have to respond to an OSHA survey formif I am normally exempt from keeping OSHA injuryand illness records?Yes, even if you are exempt from keeping injuryand illness records under Section 1904.1 to Section1904.3, OSHA may inform you in writing that it willbe collecting injury and illness information from youin the following year. If you receive such a letter, youmust keep the injury and illness records required bySection 1904.5 to Section 1904.15 and make a surveyreport for the year covered by the survey.(4) Do I have to answer the OSHA survey form if Iam located in a State-Plan State?Yes, all employers who receive survey forms mustrespond to the survey, even those in State-PlanStates.(5) Does this section affect OSHA’s authority toinspect my workplace?No, nothing in this section affects OSHA’s statutoryauthority to investigate conditions related to occupationalsafety and health.PREAMBLE DISCUSSION: Section 1904.41(66 FR 6069, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.41 Annual OSHA injury and illness surveyof ten or more employersSection 1904.41 of this final rule replaces section1904.17, “Annual OSHA Injury and Illness Survey ofTen or More Employers,” of the former rule issuedon February 11, 1997. The final rule does not changethe contents or policies of the corresponding sectionof the former rule in any way....Thus, section 1904.41 of the final rule merelyrestates, in a plain language question-and-answerformat, the requirements of former rule section1904.17, with one minor change. The final rule addsparagraph 1904.41(b)(1), which contains no requirementsor prohibitions but simply informs theemployer that there is no need to send in the Part1904 injury and illness data until the governmentasks for it.174OSHA RECORDKEEPINGHANDBOOK

FREQUENTLY ASKED QUESTIONS: Section 1904.41 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.41 Annual OSHA injury and illness survey of ten or more employersThis section will be developed as letters of interpretation become available.LETTERS OF INTERPRETATION: Section 1904.41Section 1904.41 Annual OSHA injury and illness survey of ten or more employersThis section will be developed as letters of interpretation become available.§1904.41OSHA RECORDKEEPINGHANDBOOK175

Section 1904.42Requests from the Bureau of Labor Statistics for data(66 FR 6134, Jan. 19, 2001)REGULATION: Section 1904.42Subpart E – Reporting fatality, injury and illness information to the government(66 FR 6133, Jan. 19, 2001)§1904.42Section 1904.42 Requests from the Bureau of Labor Statistics for data(a) Basic requirement.If you receive a Survey of Occupational Injuriesand Illnesses Form from the Bureau of LaborStatistics (BLS), or a BLS designee, you mustpromptly complete the form and return it followingthe instructions contained on the survey form.(b) Implementation.(1) Does every employer have to send data to theBLS?No, each year, the BLS sends injury and illnesssurvey forms to randomly selected employers anduses the information to create the Nation’s occupationalinjury and illness statistics. In any year, someemployers will receive a BLS survey form and otherswill not. You do not have to send injury and illnessdata to the BLS unless you receive a survey form.(2) If I get a survey form from the BLS, what do Ihave to do?If you receive a Survey of Occupational Injuriesand Illnesses Form from the Bureau of LaborStatistics (BLS), or a BLS designee, you mustpromptly complete the form and return it, followingthe instructions contained on the survey form.(3) Do I have to respond to a BLS survey form if Iam normally exempt from keeping OSHA injury andillness records?Yes, even if you are exempt from keeping injuryand illness records under Section 1904.1 to Section1904.3, the BLS may inform you in writing that it willbe collecting injury and illness information from youin the coming year. If you receive such a letter, youmust keep the injury and illness records required bySection 1904.5 to Section 1904.15 and make a surveyreport for the year covered by the survey.(4) Do I have to answer the BLS survey form if Iam located in a State-Plan State?Yes, all employers who receive a survey formmust respond to the survey, even those in State-PlanStates.PREAMBLE DISCUSSION: Section 1904.42(66 FR 6069-6070, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.42 Requests from the Bureau of LaborStatistics for dataSection 1904.42 of the final rule derives from the subpartof the former rule titled “Statistical Reporting ofOccupational Injuries and Illnesses.” The former ruledescribed the Bureau of Labor Statistics annual surveyof occupational injuries and illnesses, discussedthe duty of employers to answer the survey, andexplained the effect of the BLS survey on the Statesoperating their own State plans.Both OSHA and the BLS collect occupationalinjury and illness information, each for separate purposes.The BLS collects data from a statistical sampleof employers in all industries and across all sizeclasses, using the data to compile the occupationalinjury and illness statistics for the Nation. The Bureaugives each respondent a pledge of confidentiality (asit does on all BLS surveys), and the establishmentspecificinjury and illness data are not shared withthe public, other government agencies, or OSHA. TheBLS’s sole purpose is to create statistical data.OSHA collects data from employers from specificsize and industry classes, but collects from each andevery employer within those parameters. The establishment-specificdata collected by OSHA are used toadminister OSHA’s various programs and to measurethe performance of those programs at individualworkplaces....176OSHA RECORDKEEPINGHANDBOOK

OSHA and the BLS have worked together formany years to reduce the number of establishmentsthat receive both surveys. These efforts have largelybeen successful. However, OSHA and BLS use differentdatabases to select employers for their surveys.This makes it difficult to eliminate the overlap completely.We are continuing to work on methods toreduce further the numbers of employers whoreceive both BLS and OSHA survey requests.OSHA and BLS are also pursuing ways to allowemployers to submit occupational injury and illnessdata electronically. In 1998, the OSHA survey allowedemployers for the first time to submit their data electronically,and this practice will continue in futureOSHA surveys. The BLS has not yet allowed electronicsubmission of these data due to security concerns,but continues to search for appropriate methods ofelectronic submission, and hopes to allow it in thenear future.......The final rule thus specifies that the BLS has theauthority to collect information on occupational fatalities,injuries and illnesses from: (1) employers whoare required to keep records at all times; (2) employerswho are normally exempt from keeping records;and (3) employers under both Federal and State planjurisdiction. The information collected in the annualsurvey enables BLS to generate consistent statisticson occupational death, injury and illness for theentire Nation.FREQUENTLY ASKED QUESTIONS: Section 1904.42 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.42 Requests from the Bureau of Labor Statistics for dataThis section will be developed as letters of interpretation become available.LETTERS OF INTERPRETATION: Section 1904.42Section 1904.42 Requests from the Bureau of Labor Statistics for dataThis section will be developed as letters of interpretation become available.§1904.42OSHA RECORDKEEPINGHANDBOOK177

Section 1904.43Summary and posting of the 2001 data(66 FR 6134, Jan. 19, 2001)REGULATION: Section 1904.43Subpart F – Transition from the former rule(66 FR 6134, Jan. 19, 2001)§1904.43Section 1904.43 Summary and posting of the 2001 data(a) Basic requirement.If you were required to keep OSHA 200 Logs in2001, you must post a 2000 annual summary fromthe OSHA 200 Log of occupational injuries and illnessesfor each establishment.(b) Implementation.(1) What do I have to include in the summary?(i) You must include a copy of the totals from the2001 OSHA 200 Log and the following informationfrom that form:(A) The calendar year covered;(B) Your company name;(C) The name and address of the establishment;andPREAMBLE DISCUSSION: Section 1904.43(66 FR 6071, Jan. 19, 2001)(D) The certification signature, title and date.(ii) If no injuries or illnesses occurred at yourestablishment in 2001, you must enter zeros onthe totals line and post the 2001 summary.(2) When am I required to summarize and postthe 2001 information?(i) You must complete the summary by February1, 2002; and(ii) You must post a copy of the summary in eachestablishment in a conspicuous place or placeswhere notices to employees are customarily posted.You must ensure that the summary is notaltered, defaced or covered by other material.(3) You must post the 2001 summary fromFebruary 1, 2002 to March 1, 2002.The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).Section 1904.43 Summary and posting of the2001 dataSubpart F of the new rule (sections 1904.43 and1904.44), addresses what employers must do to keepthe required OSHA records during the first five yearsthe new system required by this final rule is in effect.This five-year period is called the transition period inthis subpart. The majority of the transition requirementsapply only to the first year, when the datafrom the previous year (collected under the formerrule) must be summarized and posted during themonth of February. For the remainder of the transitionperiod, the employer is simply required to retainthe records created under the former rule for fiveyears and provide access to those records for thegovernment, the employer’s employees, and employeerepresentatives, as required by the final rule atsections 1904.43 and 44....The transition also raises questions about whatshould be done in the year 2002 with respect to posting,updating, and retaining the records employerscompiled in 2001 and previous years. In the transitionfrom the former rule to the present rule, OSHAintends employers to make a clean break with theformer system. The new rule will replace the old ruleon the effective date of the new rule, and OSHA willdiscontinue the use of all previous forms, interpretationsand guidance on that date. Employers will berequired to prepare a summary of the OSHA Form200 for the year 2001 and to certify and post it in thesame manner and for the same time (one month) asthey have in the past....The final rule’s new requirements for [companyexecutive] certification and a 3-month posting periodwill not apply to the Year 2000 Log and summary.Employers still must retain the OSHA records from2001 and previous years for five years from the endof the year to which they refer. The employer must178OSHA RECORDKEEPINGHANDBOOK

provide copies of the retained records to authorizedgovernment representatives, and to his or her employeesand employee representatives, as requiredby the new rule.However, OSHA will no longer require employersto update the OSHA Log and summary forms foryears before the year 2002. The former rule requiredemployers to correct errors to the data on the OSHA200 Logs during the five-year retention period and toadd new information about recorded cases. The formerrule also required the employer to adjust thetotals on the Logs if changes were made to cases onthem....OSHA believes it would be confusing andburdensome for employers to update and adjust previousyears’ Logs and Summaries under the formersystem at the same time as they are learning to usethe new OSHA occupational injury and illness recordkeepingsystem.FREQUENTLY ASKED QUESTIONS: Section 1904.43 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.43 Summary and posting of the 2001 dataThis section will be developed as letters of interpretation become available.LETTERS OF INTERPRETATION: Section 1904.43Section 1904.43 Summary and posting of the 2001 dataThis section will be developed as letters of interpretation become available.§1904.43OSHA RECORDKEEPINGHANDBOOK179

Section 1904.44Retention and updating of old forms(66 FR 6134, Jan. 19, 2001)REGULATION: Section 1904.44Subpart F – Transition from the former rule to the new rule(66 FR 6134, Jan. 19, 2001)Section 1904.44 Retention and updating of old formsYou must save your copies of the OSHA 200 and 101forms for five years following the year to which theyrelate and continue to provide access to the data asthough these forms were the OSHA 300 and 301forms. You are not required to update your old 200and 101 forms.PREAMBLE DISCUSSION: Section 1904.44(66 FR 6070, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).§1904.44Section 1904.44 Retention and updating of old formsSubpart F. Transition from the former rule to thenew rule...An additional transition issue for employers whokept records under the former system and will alsokeep records under the new system is how to handlethe data collected under the former system duringthe transition year. Subpart F of the final ruleaddresses some of these transition issues.Subpart F of the new rule (sections 1904.43 and1904.44), addresses what employers must do to keepthe required OSHA records during the first five yearsthe new system required by this final rule is in effect.This five-year period is called the transition period inthis subpart. The majority of the transition requirementsapply only to the first year, when the datafrom the previous year (collected under the formerrule) must be summarized and posted during themonth of February. For the remainder of the transitionperiod, the employer is simply required to retainthe records created under the former rule for fiveyears and provide access to those records for thegovernment, the employer’s employees, and employeerepresentatives, as required by the final rule atsections 1904.43 and 44....The transition also raises questions about whatshould be done in the year 2002 with respect to posting,updating, and retaining the records employerscompiled in 2001 and previous years. In the transitionfrom the former rule to the present rule, OSHAintends employers to make a clean break with theformer system. The new rule will replace the old ruleon the effective date of the new rule, and OSHA willdiscontinue the use of all previous forms, interpretationsand guidance on that date (see, e.g., Exs. 21, 22,15: 184, 423). Employers will be required to prepare asummary of the OSHA Form 200 for the year 2001and to certify and post it in the same manner and forthe same time (one month) as they have in the past....The final rule’s new requirements for [companyexecutive] certification and a 3-month posting periodwill not apply to the Year 2000 Log and summary.Employers still must retain the OSHA records from2001 and previous years for five years from the endof the year to which they refer. The employer mustprovide copies of the retained records to authorizedgovernment representatives, and to his or her employeesand employee representatives, as requiredby the new rule.However, OSHA will no longer require employersto update the OSHA Log and summary forms foryears before the year 2002. The former rule requiredemployers to correct errors to the data on the OSHA200 Logs during the five-year retention period and toadd new information about recorded cases. The formerrule also required the employer to adjust thetotals on the Logs if changes were made to cases onthem (Ex. 2, p. 23). OSHA believes it would be confusingand burdensome for employers to update andadjust previous years’ Logs and Summaries underthe former system at the same time as they arelearning to use the new OSHA occupational injuryand illness recordkeeping system.180OSHA RECORDKEEPINGHANDBOOK

FREQUENTLY ASKED QUESTIONS: Section 1904.44 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.44 Retention and updating of old formsThis section will be developed as letters of interpretation become available.LETTERS OF INTERPRETATION: Section 1904.44Section 1904.44 Retention and updating of old formsThis section will be developed as letters of interpretation become available.§1904.44OSHA RECORDKEEPINGHANDBOOK181

Section 1904.45OMB control numbers under thePaperwork Reduction Act(66 FR 6134, Jan. 19, 2001)REGULATION: Section 1904.45Subpart F – Transition from the former rule(66 FR 6134, Jan. 19, 2001)The following sections each contain a collection ofinformation requirement which has been approvedby the Office of Management and Budget under thecontrol number listed.29 CFR citation OMB Control No.1904.4-35 1218-01761904.39-41 1218-01761904.42 1220-00451904.43-44 1218-0176PREAMBLE DISCUSSION: Section 1904.45Section 1904.45 OMB control numbers under the Paperwork Reduction ActNo Preamble discussion.FREQUENTLY ASKED QUESTIONS: Section 1904.45 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.45 OMB control numbers under the Paperwork Reduction ActThis section will be developed as letters of interpretation become available.LETTERS OF INTERPRETATION: Section 1904.45Section 1904.45 OMB control numbers under the Paperwork Reduction ActThis section will be developed as letters of interpretation become available.§1904.45182OSHA RECORDKEEPINGHANDBOOK

Section 1904.46Definitions(66 FR 6135, Jan. 19, 2001)REGULATION: Section 1904.46Subpart G – Definitions(66 FR 6135, Jan. 19, 2001)Section 1904.46 DefinitionsThe Act.The Act means the Occupational Safety and HealthAct of 1970 (29 U.S.C. 651 et seq.). The definitionscontained in section 3 of the Act (29 U.S.C. 652) andrelated interpretations apply to such terms whenused in this Part 1904.Establishment.An establishment is a single physical location wherebusiness is conducted or where services or industrialoperations are performed. For activities whereemployees do not work at a single physical location,such as construction; transportation; communications,electric, gas and sanitary services; and similaroperations, the establishment is represented by mainor branch offices, terminals, stations, etc. that eithersupervise such activities or are the base from whichpersonnel carry out these activities.(1) Can one business location include two ormore establishments?Normally, one business location has only oneestablishment. Under limited conditions, the employermay consider two or more separate businessesthat share a single location to be separate establishments.An employer may divide one location intotwo or more establishments only when:(i) Each of the establishments represents a distinctlyseparate business;(ii) Each business is engaged in a different economicactivity;(iii) No one industry description in the StandardIndustrial Classification Manual (1987) applies tothe joint activities of the establishments; and(iv) Separate reports are routinely prepared foreach establishment on the number of employees,their wages and salaries, sales or receipts, andother business information. For example, if anemployer operates a construction company at thesame location as a lumber yard, the employermay consider each business to be a separateestablishment.(2) Can an establishment include more than onephysical location?Yes, but only under certain conditions. An employermay combine two or more physical locations intoa single establishment only when:(i) The employer operates the locations as a singlebusiness operation under common management;(ii) The locations are all located in close proximityto each other; and(iii) The employer keeps one set of businessrecords for the locations, such as records on thenumber of employees, their wages and salaries,sales or receipts, and other kinds of businessinformation. For example, one manufacturingestablishment might include the main plant, awarehouse a few blocks away, and an administrativeservices building across the street.(3) If an employee telecommutes from home, ishis or her home considered a separate establishment?No, for employees who telecommute from home,the employee’s home is not a business establishmentand a separate 300 Log is not required. Employeeswho telecommute must be linked to one of yourestablishments under Section 1904.30(b)(3).Injury or illness.An injury or illness is an abnormal condition or disorder.Injuries include cases such as, but not limitedto, a cut, fracture, sprain, or amputation. Illnessesinclude both acute and chronic illnesses, such as, butnot limited to, a skin disease, respiratory disorder, orpoisoning. (Note: Injuries and illnesses are recordableonly if they are new, work-related cases thatmeet one or more of the Part 1904 recording criteria.)Physician or Other Licensed Health Care Professional.A physician or other licensed health care professionalis an individual whose legally permitted scope ofpractice (i.e., license, registration, or certification)§1904.46OSHA RECORDKEEPINGHANDBOOK183

allows him or her to independently perform, or bedelegated the responsibility to perform, the activitiesdescribed by this regulation.You.“You” means an employer as defined in Section 3 ofthe Occupational Safety and Health Act of 1970 (29U.S.C. 652).PREAMBLE DISCUSSION: Section 1904.46(66 FR 6071-6081, Jan. 19, 2001)The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).§1904.46Subpart G – DefinitionsThe Definitions section of the final rule contains definitionsfor five terms: “the Act,” “establishment,”“health care professional,” “injury and illness,” and“you.” To reduce the need for readers to move backand forth from the regulatory text to the Definitionssection of this preamble, all other definitions used inthe final rule are defined in the regulatory text as theterm is used. OSHA defines the five terms in this sectionhere because they are used in several places inthe regulatory text.The ActThe Occupational Safety and Health Act of 1970 (the“OSH Act”) is defined because the term is used inmany places in the regulatory text. The final rule’sdefinition is essentially identical to the definition inthe proposal. OSHA received no comments on thisdefinition. The definition of “the Act” follows:The Act means the Occupational Safety andHealth Act of 1970 (84 Stat. 1590 et seq., 29 U.S. 651et seq.), as amended. The definitions contained insection (3) of the Act and related interpretations shallbe applicable to such terms when used in this Part1904.Employee...In the final rule, OSHA has decided that it is notnecessary to define “employee” because the term isdefined in section 3 of the Act and is used in this rulein accordance with that definition.Employer...Because the final rule uses the term “employer”just as it is defined in the Act, no separate definitionis included in the final rule.EstablishmentThe final rule defines an establishment as a singlephysical location where business is conducted orwhere services or industrial operations are performed.For activities where employees do not workat a single physical location, such as construction;transportation; communications, electric, gas andsanitary services; and similar operations, the establishmentis represented by main or branch offices,terminals, stations, etc. that either supervise suchactivities or are the base from which personnel carryout these activities.The final rule also addresses whether one businesslocation can include two or more establishments.Normally, one business location has only oneestablishment. However, under limited conditions,the employer may consider two or more separatebusinesses that share a single location to be separateestablishments for recordkeeping purposes. Anemployer may divide one location into two or moreestablishments only when: each of the proposedestablishments represents a distinctly separate business;each business is engaged in a different economicactivity; no one industry description in theStandard Industrial Classification Manual (1987)applies to the joint activities of the proposed establishments;and separate reports are routinely preparedfor each establishment on the number ofemployees, their wages and salaries, sales or receipts,and other business information. For example,if an employer operates a construction company atthe same location as a lumber yard, the employermay consider each business to be a separate establishment.The final rule also deals with the opposite situation,and explains when an establishment includesmore than one physical location. An employer maycombine two or more physical locations into a singleestablishment only when the employer operates thelocations as a single business operation under commonmanagement; the locations are all located inclose proximity to each other; and the employerkeeps one set of business records for the locations,such as records on the number of employees, theirwages and salaries, sales or receipts, and other kinds184OSHA RECORDKEEPINGHANDBOOK

of business information. For example, one manufacturingestablishment might include the main plant, awarehouse serving the plant a block away, and anadministrative services building across the street.The final rule also makes it clear that when anemployee telecommutes from home, the employee’shome is not a business establishment for recordkeepingpurposes, and a separate OSHA 300 Log isnot required.The definition of “establishment” is important inOSHA’s recordkeeping system for many reasons.First, the establishment is the basic unit for whichrecords are maintained and summarized. The employermust keep a separate injury and illness Log(the OSHA Form 300), and prepare a single summary(Form 300A), for each establishment. Establishmentspecificrecords are a key component of the recordkeepingsystem because each separate record representsthe injury and illness experience of a givenlocation, and therefore reflects the particular circumstancesand hazards that led to the injuries and illnessesat that location. The establishment-specificsummary, which totals the establishment’s injury andillness experience for the preceding year, is postedfor employees at that establishment and may also becollected by the government for statistical or administrativepurposes.Second, the definition of establishment is importantbecause injuries and illnesses are presumed tobe work-related if they result from events or exposuresoccurring in the work environment, whichincludes the employer’s establishment. The presumptionthat injuries and illnesses occurring in the workenvironment are by definition work-related may berebutted under certain circumstances, which are listedin the final rule and discussed in the section ofthis preamble devoted to section 1904.5, Determinationof work-relatedness.Third, the establishment is the unit that determineswhether the partial exemption from recordkeepingrequirements permitted by the final rule forestablishments of certain sizes or in certain industrysectors applies (see Subpart B of the final rule).Under the final rule’s partial exemption, establishmentsclassified in certain Standard IndustrialClassification codes (SIC codes) are not required tokeep injury and illness records except when asked bythe government to do so. Because a given employermay operate establishments that are classified in differentSIC codes, some employers may be requiredto keep OSHA injury and illness records for someestablishments but not for others, e.g., if one or moreof the employer’s establishments falls under the finalrule’s partial exemption but others do not.Fourth, the definition of establishment is used todetermine which records an employee, formeremployee, or authorized employee representativemay access. According to the final rule, employeesmay ask for, and must be given, injury and illnessrecords for the establishment they currently work in,or one they have worked in, during their employment....Subpart G of the final rule defines “establishment”as “a single physical location where businessis conducted or where services or industrial operationsare performed. For activities such as construction;transportation; communications, electric andgas utility, and sanitary services; and similar operations,the establishment is represented for recordkeepingpurposes by main or branch offices, terminals,stations, etc. that either supervise such activitiesor are the base from which personnel carry out theseactivities.” This part of the definition of “establishment”provides flexibility for employers whoseemployees (such as repairmen, meter readers, andconstruction superintendents) do not work at thesame workplace but instead move between many differentworkplaces, often in the course of a single day.How the definition of “establishment” must beused by employers for recordkeeping purposes is setforth in the answers to the questions posed in thisparagraph of Subpart G:(1) Can one business location include two ormore establishments?(2) Can an establishment include more than onephysical location?(3) If an employee telecommutes from home, ishis or her home considered a separate establishment?The employer may consider two or more economicactivities at a single location to be separate establishments(and thus keep separate OSHA Form 300sand Form 301s for each activity) only when: (1) eachsuch economic activity represents a separate business,(2) no one industry description in the StandardIndustrial Classification Manual (1987) applies to theactivities carried out at the separate locations; and (3)separate reports are routinely prepared on the numberof employees, their wages and salaries, sales orreceipts, and other business information. This part ofthe definition of “establishment” allows for separateestablishments when an employer uses a commonfacility to house two or more separate businesses,but does not allow different departments or divisionsof a single business to be considered separate establishments.However, even if the establishment meets§1904.46OSHA RECORDKEEPINGHANDBOOK185

§1904.46the three criteria above, the employer may, if itchooses, consider the physical location to be oneestablishment.The definition also permits an employer to combinetwo or more physical locations into a singleestablishment for recordkeeping purposes (and thusto keep only one Form 300 and Form 301 for all ofthe locations) only when (1) the locations are all geographicallyclose to each other, (2) the employeroperates the locations as a single business operationunder common management, and (3) the employerkeeps one set of business records for the locations,such as records on the number of employees, theirwages and salaries, sales or receipts, and other businessinformation. However, even for locations meetingthese three criteria, the employer may, if it chooses,consider the separate physical locations to beseparate establishments. This part of the definitionallows an employer to consider a single businessoperation to be a single establishment even whensome of his or her business operations are carriedout on separate properties, but does not allow forseparate businesses to be joined together. For example,an employer operating a manufacturing businesswould not be allowed to consider a nearby storagefacility to be a separate establishment, while anemployer who operates two separate retail outletswould be required to consider each to be a separateestablishment....OSHA has reviewed all of the comments on thisissue and has responded by deleting any reference toa time-in-operation threshold in the definition ofestablishment but specifying a one-year threshold insection 1904.30 of the final rule.......Under the final rule, employers will be requiredto maintain establishment-specific records for anyworkplace that is, or is expected to be, in operationfor one year or longer. Employers may group injuriesand illnesses occurring to workers who are employedat shorter term establishments onto one or moreconsolidated logs. These logs may cover the entirecompany; geographic regions such as a county, stateor multi-state area; or individual divisions of thecompany. For example, a construction company withmulti-state operations might have separate logs foreach state to show the injuries and illnesses of shorttermprojects, as well as separate logs for each constructionproject expected to last for more than oneyear....OSHA agrees that the recordkeeping system mustrecognize the needs of operations of this type and hasadopted language in the final rule to provide someflexibility for employers in the construction, transportation,communications, electric and gas utility, andsanitary services industries, as well as other employerswith geographically dispersed operations. The finalrule specifies, in Subpart G, that employers may considermain or branch offices, terminals, stations, etc.that are either (1) responsible for supervising suchactivities, or (2) the base from which personnel operateto carry out these activities, as individual establishmentsfor recordkeeping purposes. This addition tothe final rule’s definition of establishment allows anemployer to keep records for geographically dispersedoperations using the existing management structureof the company as the recording unit.......The final rule also recognizes that, in some narrowlydefined situations, a business may have sideby-sideoperations at a single location that are operatedas separate businesses because they areengaged in different lines of business. In these situations,the Standard Industrial Classification Manual(OMB 1987) allows a single business location to beclassified as two separate establishments, each withits own SIC code. Like all government agencies,OSHA follows the OMB classification method andmakes allowances for such circumstances.......[T]he final rule makes clear in Subpart G, is thatan employer whose activities meet the final rule’sdefinition may keep separate logs if he or she choosesto do so. Thus the final rule includes a provisionthat allows an employer to define a single businesslocation as two separate establishments only underspecific, narrow conditions. The final rule allows theemployer to keep separate records only when thelocation is shared by completely separate businessoperations involved in different business activities(Standard Industrial Classifications) for which separatebusiness records are available. By providing specific,narrow criteria, the final rule reduces ambiguityand confusion about what is required and sets outthe conditions that must be met in order for employersto deviate from the one place-one establishmentconcept.OSHA expects that the overwhelming majority ofworkplaces will continue to be classified as oneestablishment for recordkeeping purposes, and willkeep just one Log. However, allowing some flexibilityfor the rare cases that meet the specified criteria isappropriate. The employer is responsible for determiningwhether a given workplace meets the criteria;OSHA will consider an employer meeting these criteriato be in compliance with the final rule if he or shekeeps one set of records per facility. This policyallows an employer to keep one set of records for agiven location and avoid the additional burden or186OSHA RECORDKEEPINGHANDBOOK

inconvenience associated with keeping separaterecords....OSHA agrees that there are situations where asingle establishment that has a satellite operation inclose physical proximity to the primary operationmay together constitute a single business operationand thus be a single establishment. For example, abusiness may have a storage facility in a nearbybuilding that is simply an adjunct to the businessoperation and is not a separate business location.OSHA believes that there are situations whereestablishments in separate physical locations constitutea single establishment. However, under the finalrule, employers will only be allowed to combine separatedphysical locations into a single establishmentwhen they operate the combined locations as a singlebusiness operation under common managementand keep a single set of business records for thecombined locations, such as records on the numberof employees, their wages and salaries, sales orreceipts, and other types of business information.How OSHA defines an establishment also hasimplications for the way company parking lots andrecreation facilities, such as company-provided gymnasiums,ball fields, and the like are treated forrecordkeeping purposes. The final rule includes theseareas in the definition of establishment but does notrequire employers to record cases occurring toemployees engaged in certain activities at these locations.For example, injuries and illnesses occurring atthe establishment while the employee is voluntarilyengaged in recreation activities or resulting from amotor vehicle accident while the employee is commutingto or from work would not have to be recorded(see section 1904.5)....Company Parking Lots and Access Roads...OSHA agrees...company parking lots can be highlyhazardous and that employers have considerablecontrol over conditions in such lots. In addition,OSHA believes that having data on the kinds ofinjuries and illnesses occurring on company parkinglots and access roads will permit employers toaddress the causes of these injuries and illnesses andthus to provide their employees with better protection.Accordingly, for recordkeeping purposes, thefinal rule includes company parking lots and accessroads in the definition of establishment. However, thefinal rule recognizes that some injuries and illnessesoccurring on company parking lots and access roadsare not work-related and delineates those that arework-related from those that are not work-related onthe basis of the activity the employee was performingat the time the injury or illness occurred. Forexample, when an employee is injured in a motorvehicle accident that occurs during that employee’scommute to or from work, the injury is not consideredwork-related. Thus, the final rule allows theemployer to exclude from the Log injuries and illnessesoccurring on company parking lots andaccess roads while employees are commuting to orfrom work or running personal errands in their motorvehicles (see section 1904.5). However, other injuriesand illnesses occurring in parking lots and on accessroads (such as accidents at loading docks, whileremoving snow, falls on ice, assaults, etc.) are consideredwork-related and must be recorded on theestablishment’s Log if they meet the other recordingcriteria of the final rule (e.g., if they involve medicaltreatment, lost time, etc.).OSHA concludes that the activity-based approachtaken in the final rule will be simpler for employersto use than the former rule’s location-based approachand will result in the collection of better data. First,the activity-based approach eliminates the need foremployers to determine where a parking lot beginsand ends, i.e., what specific areas constitute the parkinglot, which can be difficult in the case of combined,interspersed, or poorly defined parking areas.Second, it ensures the recording of those injuries andillnesses that are work-related but simply happen tooccur in these areas. If parking lots and access roadsare totally excluded from the definition of establishment,employers would not record any injury or illnessoccurring in such locations. For example,employers could fail to record an injury occurring toan employee performing work, such as building anattendant’s booth or demarcating parking spaces,from the Log.Recreation facilities. ...In the final rule, OSHA hasdecided to include recreational areas in the definitionof establishment but to include voluntary fitness andrecreational activities, and other wellness activities,on the list of excepted activities employers may useto rebut the presumption of work-relatedness in paragraph1904.5(b)(2). OSHA finds that this approach issimpler and will provide better injury and illness databecause recreational facilities are often multi-useareas that are sometimes used as work zones andsometimes as recreational areas....This approach is also consistent with OSHA’s overallapproach in the final rule of using specific activitybasedexemptions to allow the employer to rebut thepresumption of work relationship rather than providingexemptions by modifying the definition of establishment.OSHA also does not believe that this§1904.46OSHA RECORDKEEPINGHANDBOOK187

§1904.46approach will provide an incentive for employers toeliminate recreational and fitness opportunities fortheir employees. Both approaches exempt the sameinjuries from recording, but the final rule’s approachprovides employers with a more straightforwardmechanism for rebutting the presumption of workrelationship.OSHA believes that injuries and illnesses occurringto employees who are present in recreationalareas as part of their assigned work duties should berecorded on the Log; the final rule thus only permitsemployers to exclude recreational activities that arebeing performed by the employee voluntarily fromtheir Logs. For example, an injury to an exerciseinstructor hired by the company to conduct classesand demonstrate exercises would be consideredwork related, as would an injury or illness sustainedby an employee who is required to exercise to maintainspecific fitness levels, such as a security guard.Private homes as an establishment. ...In the finalrule, OSHA has not excluded private homes from thedefinition of establishment because many privatehomes contain home offices or other home-basedworksites, and injuries and illnesses occurring toemployees during work activities performed there onbehalf of their employer are recordable if theemployer is required to keep a Log. However, thefinal rule makes clear that, in the case of an employeewho telecommutes from his or her home, thehome is not considered an establishment for OSHArecordkeeping purposes and the employer is notrequired to keep a separate Log for the home office.For these workers, the worker’s establishment is theoffice to which they report, receive direction or supervision,collect pay, and otherwise stay in contact withtheir employer, and it is at this establishment that theLog is kept. For workers who are simply working athome instead of at the company’s office, i.e., foremployees who are telecommuting, OSHA does notconsider the worker’s home to be an establishmentfor recordkeeping purposes, and the definition ofestablishment makes this fact clear. OSHA hasrecently issued a compliance directive clarifying thatOSHA does not and will not inspect home offices inthe employee’s home and would inspect a homebasedworksite other than a home office only if theAgency received a complaint or referral. A fuller discussionconcerning the determination of the workrelatednessof injuries and illnesses that occur whenemployees are working in their homes can be foundin the discussion of Section 1904.5 Determination ofwork-relatedness.Miscellaneous issues ...[T]he final rule does containan exception from recordability of cases wherethe employee, for example, chokes on his or herfood, is burned by spilling hot coffee, etc. (see paragraph1904.5(b))....OSHA will continue to allow employers to keeptheir records centrally and on computer equipment,and nothing in the final rule would preclude such electroniccentralization. OSHA believes that the definitionof establishment in the final rule will have no impacton the ability of the employer to keep records centrally;however, the final rule does continue to requireemployers to summarize and post the records for eachestablishment at the end of the year....Health Care ProfessionalThe final rule defines health care professional (HCP)as “a physician or other state licensed health careprofessional whose legally permitted scope of practice(i.e., license, registration or certification) allowsthe professional independently to provide or be delegatedthe responsibility to provide some or all of thehealth care services described by this regulation.” ......Although the rule does not specify what medicalspecialty or training is necessary to provide care forinjured or ill employees, the rule’s use of the termhealth care professional is intended to ensure thatthose professionals providing treatment and makingdeterminations about the recordability of certaincomplex cases are operating within the scope of theirlicense, as defined by the appropriate state licensingagency.......OSHA shares this concern and does not intendthe use of the term “health care professional” in thisrule to modify or supersede any requirement of anyother OSHA regulation or standard....... The definition in the final rule ensures that,although decisions about the recordability of a particularcase may be made by a wide range of healthcare professionals, the professionals making thosedecisions must be operating within the scope of theirlicense or certification when they make such decisions.Injury or IllnessThe final rule’s definition of injury or illness is basedon the definitions of injury and illness used under theformer recordkeeping regulation, except that it combinesboth definitions into a single term “injury or illness.”Under the final rule, an injury or illness is anabnormal condition or disorder. Injuries includecases such as, but not limited to, a cut, fracture,sprain, or amputation. Illnesses include both acuteand chronic illnesses, such as, but not limited to, a188OSHA RECORDKEEPINGHANDBOOK

skin disease, respiratory disorder, or systemic poisoning.The definition also includes a note to informemployers that some injuries and illnesses arerecordable and others are not, and that injuries andillnesses are recordable only if they are new, workrelatedcases that meet one or more of the final rule’srecording criteria.......OSHA has decided to continue to include psychologicalconditions in the final rule’s definition ofinjury and illness because many such conditions arecaused, contributed to, or significantly aggravated byevents or exposures in the work environment, andthe Agency would be remiss if it did not collect injuryand illness information about conditions of thesetypes that meet one or more of the final rule’s recordingcriteria.In the final rule, OSHA has relied primarily on theformer rule’s concept of an abnormal condition ordisorder. Although injury and illness are broadlydefined, they capture only those changes that reflectan adverse change in the employee’s condition that isof some significance, i.e., that reach the level of anabnormal condition or disorder. For example, a merechange in mood or experiencing normal end-of-thedaytiredness would not be considered an abnormalcondition or disorder. Similarly, a cut or obviouswound, breathing problems, skin rashes, blood testswith abnormal results, and the like are clearly abnormalconditions and disorders. Pain and other symptomsthat are wholly subjective are also consideredan abnormal condition or disorder. There is no needfor the abnormal condition to include objective signsto be considered an injury or illness. However, it isimportant for employers to remember that identifyinga workplace incident as an occupational injury orillness is only the first step in the determination anemployer makes about the recordability of a givencase.OSHA finds that this definition provides an appropriatestarting point for decision-making aboutrecordability, and that the requirements for determiningwhich cases are work-related and which are not(section 1904.5), for determining which work-relatedcases reflect new injuries or illnesses rather thanrecurrences (section 1904.6), and for determiningwhich new, work-related cases meet one or more ofthe general recording criteria or the additional criteria(sections 1904.7 to 1904.12) together constitute a systemthat ensures that those cases that should berecorded are captured and that minor injuries and illnessesare excluded....OSHA has added language tothe definition of injury and illness to make it clearthat many injuries and illnesses are not recordable,either because they are not work-related or becausethey do not meet any of the final rule’s recording criteria.......OSHA recognizes that this is still a broad definition--deliberatelyso. After reviewing this issue thoroughly,OSHA finds that a system that initiallydefines injury and illness broadly and then applies aseries of screening mechanisms to narrow the numberof recordable incidents to those meeting OSHAand statutory criteria has several advantages. First,by being inclusive, this system avoids the problemassociated with any “narrow gate” approach: thatsome cases that should be evaluated are lost evenbefore the evaluation process begins. Second, thisapproach is consistent with the broad definitions ofthese terms that OSHA has used for more than 20years, which means that the approach is alreadyfamiliar to employers and their recordkeepers. Third,adding terminology like “significant” and “reasonableprobability that ill-health will result,” as commenterssuggested, would unnecessarily complicatethe first step in the evaluation process.Accordingly, the definition of injury and illness inthe final rule differs from the former definition only inminor respects. The definition is based on the formerrule’s definitions, simply combining the separate definitionsof injury and illness into a single category, tobe consistent with the elimination of separate recordingthresholds for occupational injuries and occupationalillnesses. As discussed above, OSHA has electedto continue to use a broad definition of illness orinjury. The definition in the final rule also makes itclear that each injury and illness must be evaluatedfor work-relatedness, to decide if it is a new case, andto determine if it is recordable before a coveredemployer must enter the case in the OSHA recordkeepingsystem.“You”The last definition in the final rule, of the pronoun“you,” has been added because the final rule usesthe “you” form of the question-and-answer plain-languageformat recommended in Federal plain-languageguidance. “You,” as used in this rule, meansthe employer, as that term is defined in the Act. Thisdefinition makes it clear that employers are responsiblefor implementing the requirements of this finalrule, as mandated by the Occupational Safety andHealth Act of 1970 (29 U.S.C. 651 et seq.)§1904.46OSHA RECORDKEEPINGHANDBOOK189

FREQUENTLY ASKED QUESTIONS: Section 1904.46 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.46 DefinitionsThis section will be developed as letters of interpretation become available.LETTERS OF INTERPRETATION: Section 1904.46Section 1904.46 DefinitionsOSHA requirements are set by statute, standards and regulations. Letters of interpretation explainthese requirements and how they apply to particular circumstances, but they cannot create additionalemployer obligations. These letters constitute OSHA’s interpretation of the requirements discussed.Note that OSHA enforcement guidance may be affected by changes to OSHA rules. Also, from time totime we update our guidance in response to new information. To keep apprised of such developments,you can consult OSHA’s website at http://www.osha.gov.Letters of Interpretation constitute OSHA’s interpretation only of the requirements discussed and maynot be applicable to any situation not delineated within the original correspondence.Letter of interpretation related to sections 1904.29, 1904.29(a), 1904.29(b), 1904.29(b)(2), 1904.31, 1904.33,1904.40 and 1904.46 –Recording criteria for cases involving workers from a temporary help service, employee leasing service, orpersonnel supply service.June 23, 2003Mr. Edwin G. Foulke, Jr.Jackson Lewis LLP2100 Landmark Building301 North Main StreetGreenville, SC 29601-2122Dear Mr. Foulke:Thank you for your April 3, 2003 facsimile and April 10, 2003 letter to the Occupational Safetyand Health Administration (OSHA) regarding the Injury and Illness Recording and ReportingRequirements contained in 29 CFR Part 1904. Specifically, you ask OSHA to clarify the recordingcriteria for cases involving workers from a temporary help service, employee leasing service, or personnelsupply service. Your questions have been outlined below followed by OSHA’s response.§1904.46Question 1: Under 29 CFR Section 1904.31, employers who supervise temporary or leased employeesat their facility are required to maintain the OSHA 300 Logs for those employees. With respectto those injuries, can the employer keep a separate 300 Log for the company employees and one logfor the temporary or leased employees?Response: The log is to be kept for an establishment. Under Section 1904.46 Definitions, an establishmentis a single physical location where business is conducted or where services or industrialoperations are performed. The controlling employer (using firm) may sub-divide the OSHA 300 Logto provide separate listings of temporary workers, but must consider the separate listings to be onerecord for all recordkeeping purposes, including access by government representatives, employees,former employees and employee representatives as required by Section 1904.35 and 1904.40 in theRecordkeeping regulation. OSHA’s view is that a given establishment should have one OSHA Log.Injuries and illnesses for all the covered employees at the establishment are then entered into thatrecord to create a single OSHA 300-A Summary form at the end of the year.190OSHA RECORDKEEPINGHANDBOOK

Question 2: Under 29 CFR Section 1904.31, while the standard clearly indicates the 300 Logs mustbe maintained for supervised temporary or leased employees, it does not indicate who maintains the301 documents or the first report of injuries, as well as the medical records on those employees.Also, if a temporary or leased employee has days away from work, it is normally the temporary orleased employee provider’s contractual responsibility to handle the medical treatment of the employee.The temporary or leased employee provider is the only person/entity to have the information ondays away from work. Who is responsible for maintaining the 301 logs or the first report of injuryforms as well as the medical records for these employees, assuming that the employee provider canproduce the required documents to the employer for production in the time periods set forth in thestandard?Response: Section 1904.29(a) says: “You must use OSHA 300, 300-A and 301 forms, or equivalentforms, for recordable injuries and illnesses.” In addition, 1904.29(b)(2) says: “You must completean OSHA 301 Incident Report form, or an equivalent form, for each recordable injury or illnessentered on the OSHA 300 Log.” Therefore, when the workers from a temporary help service orleasing firm are under the day-to-day supervision of the controlling party (using firm) the entireOSHA injury and illness recordkeeping responsibility belongs to the using firm.Question 3: Using the facts in Question 2, it is also important to note that an injured temporary orleased employee, who requires days from work, may be replaced by another leased or temporaryemployee at the work site. From time of the injury, the employer has no information about thereturn to work status of the injured employee. In fact, the injured employee may be assigned toanother employer once he or she is able to return to work. How can the original employer keepaccurate 300 Logs when the employee provider has sole access to information on days away fromwork and return to work status?Response: The controlling employer has the ultimate responsibility for making good-faith recordkeepingdeterminations regarding an injury and illness to any of those temporary employees theysupervise on a day-to-day basis. Although controlling employers ultimately decide if and how a particularcase should be recorded, their decision must not be an arbitrary one, but should be made inaccordance with the requirements of the Act, regulation, and the instructions on the forms. Therefore,the controlling employer must make reasonable efforts to acquire the necessary information inorder to satisfy its Part 1904 recordkeeping requirements. However, if the controlling employer isnot able to obtain information from the employer of the leased or temporary employee, the controllingemployer should record the injury based on whatever information is available to the controllingemployer. The preamble contains a brief reference about OSHA’s expectation that the employersshare information to produce accurate records, stating that “the two employers have shared responsibilitiesand may share information when there is a need to do so.” (Federal Register p. 6041)Finally, the last question you raised is whether your client or contractor has any requirements underthe recordkeeping standard to provide the new contractor the current OSHA 300 Logs for that facilitycovering those employees who now work for that contractor? Since there was no change of yourclient’s business ownership, he or she needs only to retain the records as per 1904.33 and provideaccess under 1904.35 and 1904.40.Thank you for your interest in occupational safety and health. We hope you find this informationhelpful. OSHA requirements are set by statute, standards, and regulations. Our interpretation lettersexplain these requirements and how they apply to particular circumstances, but they cannot createadditional employer obligations. This letter constitutes OSHA’s interpretation of the requirementsdiscussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also,from time to time we update our guidance in response to new information. To keep appraised ofsuch developments, you can consult OSHA’s website at http://www.osha.gov. If you have any furtherquestions, please contact the Division of Recordkeeping Requirements, at 202-693-1702.§1904.46Sincerely,John L. HenshawAssistant SecretaryOSHA RECORDKEEPINGHANDBOOK191

Section 1952.4Injury and illness recording andreporting requirements(66 FR 6135, Jan. 19, 2001)REGULATION: Section 1952.4Injury and illness recording and reporting requirements Part 1952 – [Amended](66 FR 6135, Jan. 19, 2001)2. The authority citation for Part 1952 is revised toread as follows:Authority: 29 U.S.C. 667; 29 CFR part 1902,Secretary of Labor’s Order No. 1-90 (55 FR 9033) and6-96 (62 FR 111).3. Section 1952.4 is revised to read as follows:Section 1952.4 Injury and illness recording andreporting requirements(a) Injury and illness recording and reportingrequirements promulgated by State-Plan States mustbe substantially identical to those in 29 CFR part 1904“Recording and Reporting Occupational Injuries andIllnesses.” State-Plan States must promulgaterecording and reporting requirements that are thesame as the Federal requirements for determiningwhich injuries and illnesses will be entered into therecords and how they are entered. All other injuryand illness recording and reporting requirements thatare promulgated by State-Plan States may be morestringent than, or supplemental to, the Federalrequirements, but, because of the unique nature ofthe national recordkeeping program, States mustconsult with OSHA and obtain approval of such addi-tional or more stringent reporting and recordingrequirements to ensure that they will not interferewith uniform reporting objectives. State-Plan Statesmust extend the scope of their regulation to Stateand local government employers.(b) A State may not grant a variance to the injuryand illness recording and reporting requirements forprivate sector employers. Such variances may onlybe granted by Federal OSHA to assure nationallyconsistent workplace injury and illness statistics. AState may only grant a variance to the injury and illnessrecording and reporting requirements for Stateor local government entities in that State after obtainingapproval from Federal OSHA.(c) A State must recognize any variance issued byFederal OSHA.(d) A State may, but is not required, to participatein the Annual OSHA Injury/Illness Survey as authorizedby 29 CFR 1904.41. A participating State mayeither andopt requirements identical to 1904.41 in itsrecording and reporting regulation as an enforceableState requirement, or may defer to the Federal regulationfor enforcement. Nothing in any State planshall affect the duties of employers to comply with1904.41, when surveyed, as provided by section18(c)(7) of the Act.PREAMBLE DISCUSSION: Section 1952.4Section 1952.4 Injury and illness recording and reporting requirementsNo Preamble discussion.FREQUENTLY ASKED QUESTIONS: Section 1952.4 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1952.4 Injury and illness recording and reporting requirementsThis section will be developed as letters of interpretation become available.§1952.4LETTERS OF INTERPRETATION: Section 1952.4Section 1952.4 Injury and illness recording and reporting requirementsThis section will be developed as letters of interpretation become available.192OSHA RECORDKEEPINGHANDBOOK

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