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With just 45 days to go before OSHA''s revised recordkeeping regulation is scheduled to take effect, the agency removed the last major obstacle to the introduction of the rule. In a settlement agreement announced Friday, OSHA resolved the key issues raised by the National Association of Manufacturers (NAM) in a lawsuit filed last March.
The settlement also raises an important question: Has OSHA backed away from the "geographic presumption," the long-standing, though rebuttable, presumption that injuries and illnesses that surface at work are work-related?
According to the settlement, employers must determine if a case is work-related. "If an employer decides the case is not work-related, and OSHA subsequently issues a citation for failure to record, the government would have the burden of proving that the injury was work-related."
It remains to be seen whether the settlement breaks new ground on this issue or merely clarifies existing recordkeeping enforcement policy. Employers will clearly benefit, however, from some of the provisions of the agreement. According to the settlement, the labor secretary will include the following language in the initial compliance directive to be issued on the final rule:
- Grace period. The agency will issue no citations for violations of the rule for 120 days after Jan. 1, provided employers make a good-faith effort to comply. OSHA compliance officers are to focus on compliance assistance rather than enforcement.
- Work-relatedness. A case is "presumed work-related if, and only if, an event or exposure in the work environment is a discernible cause of the injury or illness or of a significant aggravation to a pre-existing condition."
- Work restrictions. If an employee experiences a minor musculoskeletal discomfort and a health care professional (HCP) recommends a work restriction, 29 CFR 1904.7(b)(4) does not impose an enforceable duty on employers to ensure that employees comply with the HCP''s recommendation. In addition, a case is not recordable if an employee has a minor musculoskeletal discomfort, an HCP determines he or she is able to perform all routine job functions, and the employer assigns a work restriction to the employee to prevent a more serious condition from developing.
- Self-reporting. An employee report of an injury or illness does not necessarily establish the existence of a recordable injury or illness.
- Oxygen. A case is not recordable if oxygen is administered as a purely precautionary measure to an employee who has no serious symptoms of injury or illness. If the employee is exposed to a substance at work and shows symptoms of an injury or illness, the use of oxygen makes the case recordable.
"These are good clarifications," said William Ament, a consultant at Organization Resources Counselors. "Overall, it is clearly an incremental improvement; I think we have a long way to go." Ament believes there are still many other unresolved questions and that OSHA will need to make some additional clarifications to the revised rule.
"The most significant feature of this settlement is making it clear that an injury must be work-related to be recordable," said Quentin Riegel, deputy general counsel for NAM. The language in the settlement agreement is intended to reassure employers that OSHA will not cite them for employee complaints that are not clearly injuries or illnesses or not clearly work-related.
The reverse of this is that if an employer decides a case is not work-related and OSHA later issues a citation for the failure to record, the government would have the burden of proving that the injury or illness was work-related.
Riegel and Ament declined to comment on whether assigning OSHA the burden of proof in these disputes represents a significant departure from current practice.
"It''s not a question that can be simply responded to," Baruch Fellner said when asked if the burden of proof shift on work-relatedness represents a significant change from current practice. Fellner, an attorney who represented NAM in the lawsuit and settlement agreement, added that the settlement represents an "appropriate interpretation of the geographic presumption."
by James L. Nash