OSHA Recordkeeping Handbook - denix

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