Light At the End of the Tunnel

OSHA'S revised recordkeeping standard was a six-year effort that clears up much of the confusion sown by the old rule.

IS it an "injury" or an "illness?" Is the broken ankle suffered during the company-sponsored softball game a recordable injury? How should lost work time be recorded? Does that butterfly bandage constitute first aid, or is it medical treatment?

If you're reading this article, you most likely have struggled with these and other similar questions, which came up all too often under OSHA's original recordkeeping standard. In the past, answers to these questions were hard to find. Oftentimes, the agency's "guidance" documents and resource materials only added to the confusion that already existed. Calling your local area office or the agency's recordkeeping "experts" in Washington only yielded differing opinions and greater uncertainty for you and the others who ultimately were responsible for signing the recordkeeping forms.

Fortunately, OSHA long ago acknowledged the deficiencies of its recordkeeping regulations, and after many years of public and private debate, sweeping changes were introduced in 2002. This article will highlight those changes.

Why Record Injuries and Illnesses?
Since the Occupational Safety and Health Act was first promulgated in 1971, employers have been responsible for maintaining records of work-related injuries and illnesses. According to OSHA, these records not only provide important statistical information on the number of workplace injuries and illnesses, but also help to identify high-risk industries and the conditions systemic to those industries that create the greatest risk of harm to employees. Indeed, by identifying such conditions, OSHA argued employers could then take proactive measures to better protect the health and safety of their employees.

Unfortunately, however, the agency's original regulations often impeded, rather than promoted, accurate recordkeeping by employers, primarily because of the confusion created by such concepts as "work-relatedness," "first aid," "restricted work" and "medical treatment." Furthermore, today's health problems, such as HIV, cumulative trauma disorders, and mental health disorders, did not fit neatly into OSHA's 30-year-old regulations, further complicating an already intricate process.

As a result of these problems, employers would inadvertently under- or over-report injuries and illnesses, thus skewing their own injury and illness rates, as well as those of the industry to which they belonged. In turn, OSHA would consider these incidents as violations of the recordkeeping standards and would therefore routinely issue citations to these employers. To address the myriad of problems created by the "old" recordkeeping standards (OSHA delayed implementation of the regulations regarding hearing loss and musculoskeletal disorders for one year, until January 1, 2003), OSHA has implemented sweeping recordkeeping changes for the first time in its three-decade history. Those changes affect approximately 1.4 million work sites.

The Recordkeeping Process
Employers need look no further than the new OSHA forms to see the first signs of change. Under the old standards, employers completed the 200 Log of Injuries and Illnesses and the 101 Supplemental Record. Employers are now required to use the OSHA 300 Log, 301 Incident Report, and the 300A Summary, all of which are designed to be far easier to understand and much simpler to complete.

These recordkeeping forms, which can be found at www.osha.gov, can be maintained on the employer's computer system or at another work site, provided the documents can be easily retrieved if requested by the agency.

The Injury and Illness Incident Report, Form 301, asks for more data than its predecessor regarding individual incidents. At year-end, employers, as they did under the old regulations, must summarize the information from these forms on the Summary of Work-Related Injuries and Illnesses, a new form that OSHA believes will make calculation of incidence rates much easier. Importantly, under the new standard, employers must post this Summary for three months; a company executive, rather than an employer representative, must certify the accuracy of the information contained in the records.

To ensure these records are complete and accurate, employers must establish procedures for employees to follow for reporting work-related injuries and illnesses and provide specific training on these new procedures. As part of this training, employees must be told that, under Section 11(c) of the OSH Act, employers cannot discriminate against those who report the occurrence of any injury or illness in the workplace.

In addition, employees and their representatives (unions, usually) may have access to the illness and injury log, including the names of those affected. Employees have access to their own Individual Reports, and employee representatives have access to the portions of these Reports that list relevant information about health and safety in the workplace.

Responding to privacy concerns, OSHA allows employers to enter "Privacy Case" instead of an employee's name for certain types of injuries and illnesses. These privacy cases include injuries or illnesses involving an intimate body part or the reproductive system, sexual assault, HIV or hepatitis infection, tuberculosis, and mental illness, as well as other similar cases.

Covered Employers
As before, OSHA exempts employers with 10 or fewer employees from the recordkeeping requirements, as well as a list of service and retail industries. The new rule has revised this list of partially exempt industries, adding some and deleting others.

What to Record: Work-Related Injuries and Illnesses
The new rules have significantly elaborated upon the definition of a "work-related" injury or illness.

As before, work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception applies. The new rules have expanded the exceptions to include cases involving eating and drinking food and beverages, common colds and flu, blood donations, exercise programs, and mental illness. Therefore, employers need not record injuries occurring in the workplace involving activities that fall within these categories. Importantly, the definition of "work-related" includes pre-existing conditions only if significantly aggravated by workplace events or exposures, as opposed to the old rule, which covered any aggravation.

While the previous criteria for recording work-related injuries differed from work-related illnesses, the new rule has established one criterion to use for both. Any injury or illness must be recorded if it results in death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, loss of consciousness, or significant injury or illness diagnosed by a licensed health care professional.

Moreover, the new rules provide more clarification for each of these criteria. First, "restricted work" occurs now if the employee cannot work a full shift or cannot perform all of his or her "routine job functions." These job functions, as opposed to "normal job duties" under the old rule, are any duties the employee regularly performs at least once a week.

Second, the rules have tightened the distinction between injuries resulting in medical treatment, which must be recorded, and injuries only needing first aid, which need not be recorded. Unlike the previous rule that referred to a non-comprehensive list of first aid examples, the new regulation lists all procedures constituting first aid; any procedure outside this list is "medical treatment" and gives rise to a recording obligation. New additions to the first aid list include dispensing over-the-counter medication at prescription strength, any number of hot or cold treatments, drilling a nail, and applying a butterfly bandage or Steri-Strip. This new definition will greatly simplify recordkeeping decisions.

Third, when employers count days away from work or days of restricted work activity, they may now count calendar days, not just work days, as they did under the old standard. Moreover, once an employee has been out of work or on restricted work for more than 180 days, the employer is no longer obligated to keep count.

Finally, the new rule employs a blanket requirement of recording all cases of work-related transmission of tuberculosis and any needlestick or sharps injury involving contamination by another person's blood or potentially infectious materials.

Reporting Fatalities and Catastrophes
The new standard retains the requirement that employers must report all fatalities and workplace incidents involving the hospitalization of three or more employees within eight hours of the incident. Under the new rule, employers also must report all fatal heart attacks that occur in the workplace. The new rule does not, however, require employers to call in motor vehicle accidents on public streets except those in a construction work zone; nor are employers responsible for reporting commercial bus, plane, or train accidents.

A Six-Year Odyssey
OSHA began the rulemaking procedure for these improvements to the recordkeeping rules more than six years ago. Many say the agency has made much progress toward better information and simpler recording for employers.

Because the new system undoubtedly will raise new questions, OSHA will be providing an extensive outreach campaign to help employers comply with the new rule and use the new forms. There seems to be light at the end of this tunnel. . . .

This article originally appeared in the January 2003 issue of Occupational Health & Safety.

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