Recordkeeping: OSHA Tries to Make It Simple

While most employers welcome the added clarity of the new regulation, legal issues still dog OSHA's latest rulemaking.

One of OSHA's goals was to get a recordkeeping rule that was a little simpler and a little clearer. I think they achieved that."

That's Chuck Heindrichs' overall take on OSHA's revised recordkeeping regulation, scheduled to take effect Jan. 1. Heindrichs is corporate safety manager for Cleveland-based Eaton Corp., an international company with 35,000 U.S. employees who manufacture components used in the aerospace, agriculture and auto industries.

Heindrichs' view is shared by many EHS professionals who have been following the agency's 15-year effort to update requirements on how workplace illnesses and injuries are recorded. Few people are more qualified to speak about OSHA's recordkeeping regulation than Steve Newell, a consultant with Organization Resources Counselors' (ORC) Washington office. Back in the 1980s when he worked for OSHA, Newell wrote the famous "Blue Book," a guidance document intended to help employers understand and comply with injury and illness recording requirements.

"The revised rule is a success story," Newell commented, "a rare success story."

To achieve the goal of greater clarity, the new rule:

  • Eliminates the previous distinction between injuries and illnesses,
  • Sweeps away hundreds of letters and interpretive documents tied to the existing rule, and
  • Resolves questions about what constitutes "medical treatment" by establishing a first aid list.

Eliminating the many "gray areas" in the existing rule is one of the most significant changes in the new regulation, according to Joe Holtshouser, team leader in global health, safety and regulatory affairs for Goodyear Tire and Rubber, headquartered in Akron, Ohio.

"We ended up with many interpretations of how to comply. That's why Steve Newell had to write the 'Blue Book,' and we've been living on that 'Blue Book' and the ... letters of interpretation ever since," Holtshouser said.

"The biggest change from where I sit is first aid," said Harry Smith, chief executive officer of Safety Software, a Charlottesville, Va., company that produces software designed to help companies comply with OSHA's recordkeeping requirements.

According to Smith, many of the questions of interpretation center on whether a worker has received "medical treatment" for a work-related injury or illness.

The revised rule contains a list of first aid treatments at 29 CFR Part 1904.7(b)(5). If a procedure is not on the list, that means OSHA considers it to be "medical treatment." Any work-related injury or illness that has received medical treatment must be recorded.

Heindrichs likes the new approach. "Here's the list, the tablets have been brought down and etched in stone," he said. "For recordkeepers who were playing games before, this is clear."

The permanence of the first aid list could haunt OSHA later, Newell cautioned, if new procedures turn up that ought to be considered first aid. He said he hopes OSHA will revisit the list every three years, but worries that would not occur given the agency's rulemaking pace.

Newell's worries may be well-grounded. "I can't remember the last medical breakthrough in first aid," an OSHA official said. "There aren't many new Band-Aids being invented."

Even if OSHA wanted to update the first aid list, it could take a long time to make the changes. OSHA rulemaking often moves at glacial speed: It took a decade and a half to revise the existing recordkeeping rule.

Work-relatedness Keys Litigation

One of the biggest ongoing disputes is how to determine whether an injury or illness occurring at work is work-related. A suit filed against OSHA by the National Association of Manufacturers (NAM) alleges that the final rule "expands the definitions of 'work-relatedness' and 'injury or illness.'"

"It's clear that what's being codified here is a 'scintilla' rule," contended Quentin Riegel, deputy general counsel for NAM. "If there's a scintilla of evidence that a workplace event contributed in some way to an injury or illness, then it's recordable."

NAM believes this is unreasonable and that it will lead to a huge increase in recordable cases, diverting resources away from real problems. It also fears that the rule will lead OSHA to target new standards and enforcement at nonexistent problems.

"They're wrong; work-relatedness hasn't changed," countered Peg Seminario, the AFL-CIO's director of safety and health programs. She said the new rule simply maintains what is in the existing rule, the "geographic presumption" that an injury or illness occurring at work is work-related. This presumption is refutable, and 1904.5(b)(2) sets out these conditions.

Newell pointed out that one change in the recordability of pre-existing conditions actually takes a step in the employers' direction. Under the new rule, a workplace incident must significantly aggravate a pre-existing condition to be recordable. The old rule did not require that caveat.

The definition of "significant" is spelled out at 1904.5(b)(4), using "but-for" language that is often used in workers' compensation cases. For example, the employee would have not been required to take off from work "but for the occupational event or exposure."

"Another way of getting at it is, would this have happened anyway?" Newell explained. He said ORC favors using the but-for test for all occupational injuries and illnesses, not just pre-existing conditions.

If the work-related issue confuses you, you're not alone. "It's still murky," Heindrichs commented. "Whether it's an improvement or not will depend on how it's interpreted."

Agency policy usually does not allow OSHA officials to speak for attribution. One official who worked on the new recordkeeping rule contended that the presumption of work-relatedness has changed "only slightly" and agreed with Newell's understanding that what few changes there are favor employers.

Ergonomics Connection

If that's the case, what lies behind NAM's lawsuit? Several observers gave a one-word answer: ergonomics.

"They're not going to allow anything on work-relatedness to appear in a recordkeeping rule unless they can accept it in an ergonomics rule," said Aaron Trippler, director of government affairs at the American Industrial Hygiene Association (AIHA).

Seminario charged that NAM is proposing a "radical departure" that would significantly limit the injuries that are recorded. "They told us directly the purpose is to reduce the number of musculoskeletal disorders (MSDs) that are recorded," she said, "so that there is no political imperative to take action on the problem."

Riegel replied that the language of the new rule would artificially inflate actual numbers of injuries and illnesses caused in the workplace.

"The reason we're doing this is to get accurate statistics," he said. "If the political imperatives of the past were based on improper statistics of injuries, then maybe those imperatives will change if the statistics are corrected."

Whatever the merits of the lawsuit, its real motive is not to prevail in court, according to Robert Gombar, a partner in the OSHA practice group at McDermott, Will & Emery's Washington office.

"I think it's a very good way to get the government to sit down and negotiate the final shape of the regulation," Gombar said. "That's the purpose of the lawsuit."

By that measure, NAM already appears to be succeeding. In June, Labor Secretary Elaine Chao announced that she wanted to delay two controversial provisions of the final rule: the definition and recording requirements for MSDs and for hearing loss.

Arguing that the whole approach to MSDs in the final recordkeeping rule was tied to the OSHA ergonomics standard Congress nullified in March, Chao decided to re-examine the ergonomics issue and conducted public forums on the matter this summer. Chao had promised a final decision on a new comprehensive approach to ergonomics by the end of September.

The AFL-CIO worries that if OSHA eliminates the new MSD recording criteria, there will be no definition or recording requirements for MSDs at all. This would make it more difficult to enforce against ergonomics hazards using the general-duty clause.

An OSHA official confirmed that if OSHA drops the MSD provisions from the final rule, employers will have to define MSDs by using the rule's general definition of injuries and illnesses. That's because the new recordkeeping rule sweeps away all previous guidance documents and letters of interpretation.

"Let's face it, there are a lot of people out there who don't want anything on MSDs in the final rule," AIHA's Trippler said. "That's been the intent of business all along." AIHA opposes OSHA's proposal to delay implementing the MSD and hearing loss provisions of the final rule.

Many employers supported delaying the new requirements for recording hearing loss. Under current interpretations of the existing rule, only a standard threshold shift of 25 decibels (dB) or more is recordable. The new final recordkeeping rule would have changed this to 10 dB.

Gombar predicted that the new MSD definition and recording requirement will stay out of the final rule and that OSHA will "back down" on hearing loss.

An OSHA official said the final decision on whether to delay the MSD and hearing loss provisions will appear in the Federal Register by early November.

Some employers are already complaining that they are running out of time to train employees in how to use the new forms. NAM has asked the Department of Labor to allow companies to use the existing forms through 2002. At press time, the department had not responded to the request.

Big Changes?

Despite these controversial elements, employers who understand current recording requirements should find the new rule presents few significant changes, ORC's Newell suggested. Jim Thornton, director of environmental health and safety at Newport News Shipbuilding (NNS) in Newport News, Va., agrees.

"Because we have worked so diligently to make sure our recordkeeping program is consistent with OSHA

requirements," Thornton said, "we feel that, for us, the impact of the changed regulation will be minimal." NNS is a member of OSHA's Voluntary Protection Program, so the company's recordkeeping practices have been scrutinized.

Thornton sees no substantive change regarding work-relatedness. He also did not put a great deal of importance on whether MSDs must be recorded. "Irrespective of how OSHA decides to capture MSD data, I'm spending a lot of effort to reduce these injuries," he explained. "MSDs are the No. 1 disorders in frequency and severity in our industry."

Goodyear's Holtshouser thinks an important benefit of the new rule will be that companies will more fairly compare their safety and health programs with each other. Because the old rule was open to so many interpretations, companies could not necessarily rely on the data.

"Companies want a system they can use to benchmark with other companies," he said. "That way, they can find out who is doing the best job so they can learn from them how to improve."

McDermott, Will & Emery's Gombar said the consensus among the companies he works with is that, overall, the new recordkeeping system is a little simpler, a little more predictable and allows for a "little less wiggle room." There is one other point, he added, that could easily be obscured by the NAM lawsuit.

"The most important thing for an employer to understand is that OSHA recordkeeping is not a fault-finding system," he said. "It's just one measure of how well your health and safety program is doing."

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