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Parts:    4


Defining Lost Workdays

OSHA proposed to eliminate the term "lost workdays," by replacing it with "days away from work" (61 FR 4033). The OSHA recordkeeping system has historically defined lost workdays as including both days away from work and days of restricted work activity, and the Recordkeeping Guidelines discussed how to properly record lost workday cases with days away from work and lost workday cases with days of restricted work activity (Ex. 2, p. 47, 48). However, many use the term "lost workday" in a manner that is synonymous with "day away from work," and the term has been used inconsistently for many years. Many commenters on the proposal agreed that the term "lost workday" should be deleted from the forms and the recordkeeping system because of this confusion (see, e.g., Exs. 33; 37; 15: 9, 26, 69, 70, 105, 107, 136, 137, 141, 146, 176, 184, 204, 224, 231, 266, 271, 272, 273, 278, 281, 287, 288, 301, 303, 305, 347, 384, 414, 428). The Akzo Nobel Chemicals Company (Ex. 37) simply commented "[a] big ATTA BOY for removing restricted work cases from under the lost time umbrella. They never really belonged there." William K. Principe of the law firm of Constangy, Brooks & Smith, LLC, stated that:

The elimination of the term "lost work days" is a good idea, because its use under the existing recordkeeping regulations has been confusing. Recordkeepers have equated "lost work days" with "days away from work," but have not thought that "lost work days" included days of "restricted work activity." Thus, the elimination of "lost work days" will result in more understandable terminology.

The Hoffman-La Roche, Inc. company agreed with OSHA's proposal to eliminate the term lost workdays from the system, stating that "[t]he term "lost workdays" is confusing and does not clearly define whether the case involved days away from work or restricted days. However, the term "lost workday case" still has a place in defining a case that has either days away from work or restricted days." The Jewel Coal and Coke Company (Ex. 15: 281) remarked that:

[w]e believe that the listing of restricted work injuries/ illnesses has its purpose as to the consideration of the seriousness of the injury or illness. However, we believe that restricted work duty injuries/illnesses should be placed in a separate category from days away from work and should not be considered as serious as accidents with days away from work but are in fact more serious than first Aid cases or other medically reportable cases. We believe that the listing of the date of return of the employee to full work activities may very well have it's place on the OSHA Form 301 or other supplemental forms.

In the final rule, OSHA has eliminated the term "lost workdays" on the forms and in the regulatory text. The use of the term has been confusing for many years because many people equated the terms "lost workday" with "days away from work" and failed to recognize that the former OSHA term included restricted days. OSHA finds that deleting this term from the final rule and the forms will improve clarity and the consistency of the data.

The 300 Log has four check boxes to be used to classify the case: death, day(s) away from work, days of restricted work or job transfer; and case meeting other recording criteria. The employer must check the single box that reflects the most severe outcome associated with a given injury or illness. Thus, for an injury or illness where the injured worker first stayed home to recuperate and then was assigned to restricted work for several days, the employer is required only to check the box for days away from work (column I). For a case with only job transfer or restriction, the employer must check the box for days of restricted work or job transfer (Column H). However, the final Log still allows employers to calculate the incidence rate formerly referred to as a "lost workday injury and illness rate" despite the fact that it separates the data formerly captured under this heading into two separate categories. Because the OSHA Form 300 has separate check boxes for days away from work cases and cases where the employee remained at work but was temporarily transferred to another job or assigned to restricted duty, it is easy to add the totals from these two columns together to obtain a single total to use in calculating an injury and illness incidence rate for total days away from work and restricted work cases.

Counting Days of Restricted Work or Job Transfer

Although the final rule does not use the term "lost workday" (which formerly applied both to days away from work and days of restricted or transferred work), the rule continues OSHA's longstanding practice of requiring employers to keep track of the number of days on which an employee is placed on restricted work or is on job transfer because of an injury or illness. OSHA proposed to eliminate the counting of the number of days of restricted work from the proposed 300 Log (61 FR 4046). The proposal also asked whether the elimination of the restricted work day count would provide an incentive for employers to temporarily assign injured or ill workers to jobs with little or no productive value to avoid recording a case as one involving days away from work (61 FR 4046).

A large number of commenters supported OSHA's proposal to eliminate the counting of restricted work days (see, e.g., Exs. 21; 26; 27; 28; 33; 37; 51; 15: 9, 19, 26, 39, 44, 60, 65, 67, 69, 70, 76, 79, 82, 83, 85, 87, 100, 105, 107, 111, 119, 121, 123, 136, 137, 141, 145, 146, 154, 156, 159, 170, 171, 173, 176, 184, 188, 194, 199, 203, 204, 205, 218, 224, 225, 229, 230, 231, 234, 235, 239, 246, 247, 260, 262, 265, 266, 271, 272, 273, 278, 281, 283, 287, 288, 289, 298, 301, 303, 304, 305, 307, 317, 321, 332, 334, 336, 337, 341, 345, 346, 347, 351, 364, 368, 373, 384, 390, 391, 392, 401, 405, 409, 413, 414, 423, 424, 426, 427, 428, 430, 434, 437, 440, 442). For example, the Union Carbide Corporation (Ex. 15: 391) argued that their:

[e]xperience with tracking lost or restricted workdays the way it is being done today indicates that it is fruitless. The interest is in the number of lost workday or restricted workday cases with only minor attention being given to the number of days involved. Elimination of the term "lost workdays" in regard to restricted workdays would surely be a step in the direction of simplicity and focus. The severity of an injury/illness is more clearly indicated by the number of days away from work than by any other means. The inclusion of cases involving restricted work only clouds the issue.

The Monsanto Corporation (Ex. 28) urged the Agency to do away with all day counts, noting that Monsanto:

[u]ses the recordable case as the basis of our performance measurement system. We measure the number of days away and restricted but rarely look at them. We agree that OSHA should eliminate the number of days of restricted work from the requirements but we would also delete the number of days away as well. While the number of days are some measure of "severity", we think a better and simpler measure is just the cases rate for fatalities and/or days away cases.

The commenters who argued for eliminating the counting of restricted workdays offered several reasons: (1) Doing away with the counting would simplify the recordkeeping system and reduce burden on employers (see, e.g., Exs. 33; 15: 69, 105, 136, 137, 141, 146, 156, 176, 184, 188, 203, 224, 231, 239, 266, 272, 273, 278, 288, 289, 301, 303, 304, 336, 337, 345, 346, 347, 390, 391, 409, 424, 426, 428, 430, 442); (2) eliminating the day counts would make it easier to computerize the records (see, e.g., Exs. 15: 136, 137, 141, 224, 266, 278); (3) limiting counts of restricted work would match workers' compensation insurance requirements, which typically count only days away from work (see, e.g., Exs. 15: 225, 336); (4) counts of restricted work have little or no value (see, e.g., Exs. 21; 15: 65, 105, 119, 154, 170, 203, 205, 235, 260, 262, 265, 332, 347, 391, 401, 405, 409, 430); (5) restricted workday counts are not used in safety and health programs and their evaluation (see, e.g., Exs. 15: 65, 119, 154, 159, 194, 239, 271, 347, 409, 426, 428); (6) restricted workday counts are not a good measure of injury and illness severity (see, e.g., Exs. 15: 336, 345); and (7) restricted workday counts are not a uniform or consistent measure (see, e.g., Exs. 15: 235, 288, 289, 347, 409, 442).

For example, the National Grain and Feed Association (Ex. 15: 119) argued that "[t]here is no evidence that the current restricted work activity day counts are being used in safety and health programs and there is no purpose in continuing the restricted work activity count requirement." The Tennessee Valley Authority (Ex. 15: 235) argued that "[o]nly days away from work or death should be recorded on the 300 log. Recording of restricted work-day cases is difficult to consistently record, thereby, not providing a good data base for comparison."

However, a number of commenters opposed the proposal to eliminate the counting of restricted days (see, e.g., Exs. 35; 15: 31, 34, 41, 61, 72, 74, 181, 186, 281, 310, 350, 359, 369, 371, 380, 438). For example, Linda Ballas & Associates (Ex. 15: 31) argued that:

[r]estricted work days should be counted. A restricted case with 1 restricted day would be less severe than a restricted work case with 30 days. The elimination of the restricted work activity day count will provide an incentive for employers to temporarily assign injured or ill workers to jobs with little or no productive value to avoid recording a case as one involving days away from work.* * *

Most of these commenters argued that restricted work day data are needed to gauge the severity of an occupational injury or illness (see, e.g., Exs. 15: 31, 34, 41, 181, 186, 310, 369, 371, 438) or that such data are a measure of lost productivity (see, e.g., Exs. 15: 41, 61, 281). The American Association of Occupational Health Nurses stated that "[O]SHA should be aware that modifications to recording restricted work days will result in the loss of valuable information related to the severity of the injuries/illnesses." The Jewel Coal and Coke Company (Ex. 15: 281) stated that:

We believe that the listing of restricted work injuries/ illnesses has its purpose as to the consideration of the seriousness of the injury or illness. However, we believe that restricted work duty injuries/illnesses should be placed in a separate category from days away from work and should not be considered as serious as accidents with days away from work but are in fact more serious than first Aid cases or other medically reportable cases.* * *

The North Carolina Department of Labor (Ex. 15: 186) recommended that:

[r]estricted work day counts as well as lost work day counts can be measures of the severity of individual illnesses/injuries. In addition through trend analysis lost work day rates and restricted work day rates may be calculated by job, department, etc. to identify higher risk jobs, departments, etc. and/or measure the effectiveness of interventions and progress in the development of a comprehensive ergonomics program.

As to OSHA's question in the proposal about the incentive for employers to offer restricted work to employee's in order to avoid recording a case with days away from work, a number of commenters questioned whether such an incentive exists (see, e.g., Exs. 15: 13, 26, 27, 39, 79, 136, 137, 141, 156, 181, 199, 218, 224, 229, 242, 263, 266, 269, 270, 278, 283, 341, 364, 377, 409, 426, 434, 440). For example, the United Technologies Company (UTC) stated that "[U]TC does not believe that the recording or not recording of restricted days will influence management's decision to temporarily assign employees to restricted work. The decision to place an employee on restricted work is driven by workers' compensation costs rather than OSHA incidence rates" (Ex. 15: 440). The American Textile Manufacturers Association (ATMI) agreed:

[A]TMI believes that this will not provide an incentive for employers to temporarily assign injured or ill workers to jobs with little or no productive value to avoid recording a case as one involving days away from work. The restricted work activity day count is in no way related to an employer wanting to avoid having days away from work. Workers' compensation claims and, for the most part, company safety awards are based on the number of "lost-time accidents." The counting of restricted work days has never been an incentive or disincentive for these two key employer safety measures and ATMI believes that this will not change. (Ex. 15: 156)

Other commenters, however, believed there could be incentive effects (see, e.g., Exs. 15: 13, 31, 74, 111, 359, 369).

In the final rule, OSHA has decided to require employers to record the number of days of restriction or transfer on the OSHA 300 Log. From the comments received, and based on OSHA's own experience, the Agency finds that counts of restricted days are a useful and needed measure of injury and illness severity. OSHA's decision to require the recording of restricted and transferred work cases on the Log was also influenced by the trend toward restricted work and away from days away from work. In a recent article, the BLS noted that occupational injuries and illnesses are more likely to result in days of restricted work than was the case in the past. From 1978 to 1986, the annual rate in private industry for cases involving only restricted work remained constant, at 0.3 cases per 100 full-time workers. Since 1986, the rate has risen steadily to 1.2 cases per 100 workers in 1997, a fourfold increase. At the same time, cases with days away from work declined from 3.3 in 1986 to 2.1 in 1997 (Monthly Labor Review, June 1999, Vol. 122. No. 6, pp. 11-17). It is clear that employers have caused this shift by modifying their return-to-work policies and offering more restricted work opportunities to injured or ill employees. Therefore, in order to get an accurate picture of the extent of occupational injuries and illnesses, it is necessary for the OSHA Log to capture counts of days away from work and days of job transfer or restriction.

The final rule thus carries forward OSHA's longstanding requirement for employers to count and record the number of restricted days on the OSHA Log. On the Log, restricted work counts are separated from days away from work counts, and the term "lost workday" is no longer used. OSHA believes that the burden on employers of counting these days will be reduced somewhat by the simplified definition of restricted work, the counting of calendar days rather than work days, capping of the counts at 180 days, and allowing the employer to stop counting restricted days when the employees job has been permanently modified to eliminate the routine job functions being restricted (see the preamble discussion for 1904.7 General Recording Criteria).

Separate 300 Log Data on Occupational Injury and Occupational Illness

OSHA proposed (61 FR 4036-4037) to eliminate any differences in the way occupational injuries, as opposed to occupational illnesses, were recorded on the forms. The proposed approach would not, as many commenters believed, have made it impossible to determine the types and number of cases of occupational illnesses at the aggregated national level, although it would have eliminated the distinction between injuries and illnesses at the individual establishment level. In other words, the proposed approach would have involved a coding system that the BLS could use to project the incidences of several types of occupational illnesses nationally, but would not have permitted individual employers to calculate the incidence of illness cases at their establishments.

Many commenters reacted with concern to the proposal to eliminate, for recording purposes, the distinction between occupational injuries and occupational illnesses, and to delete the columns on the Log used to record specific categories of illnesses (see, e.g., Exs. 15: 213, 288, 359, 369, 407, 418, 429, 438). For example, Con Edison stated that "Distinguishing between injuries and illness is a fundamental and essential part of recordkeeping" (Ex. 15: 21), and the National Institute for Occupational Safety and Health (NIOSH) discussed the potentially detrimental effects on the Nation's occupational injury and illness statistics of such a move, stating "For occupational health surveillance purposes * * * NIOSH recommends that entries on the OSHA log continue to be categorized separately as illnesses and injuries" (Ex. 15: 407).

Many commenters also criticized OSHA's proposal to delete from the Log the separate columns for 7 categories of occupational illnesses (see, e.g., Exs. 20, 35, 15: 27, 283, 371). These commenters pointed out that these categories of illnesses have been part of the recordkeeping system for many years and that they captured data on illness cases in 7 categories: occupational skin diseases or disorders, dust diseases of the lungs, respiratory conditions due to toxic agents, poisoning (systemic effects of toxic materials), disorders due to physical agents, disorders associated with repeated trauma, and all other occupational illnesses. Typical of the views of commenters concerned about the proposal to delete these columns from the Log was the comment of the United Auto Workers: "OSHA should abandon the plan to change the OSHA 200 form to eliminate illness categories. The illness categories in the summary presently provide critically necessary information about cumulative trauma disorders, and useful information about respiratory conditions" (Ex: 15: 348).

Several commenters supported the proposed concept of adding a single column to the form on which employers would enter illness codes that would correspond to the illness conditions listed in proposed Appendix B, which could then be decoded by government classifiers to project national illness incidence rates for coded conditions (see, e.g., Exs. 20, 15: 27, 369, 371). For example, the United Brotherhood of Carpenters and Joiners of America stated:

The UBC would recommend [that].* * * A column should be added for an identification code for recordable conditions from Appendix B. (Eg. 1 = hearings loss, 2 = CTD's. 3 = blood lead. Etc.) (Ex. 20).

After a thorough review of the comments in the record, however, OSHA has concluded that the proposed approach, which would have eliminated, for recording purposes, the distinction between work-related injuries and illnesses, is not workable in the final rule. The Agency finds that there is a continuing need for separately identifiable information on occupational illnesses and injuries, as well as on certain specific categories of occupational illnesses. The published BLS statistics have included separate estimates of the rate and number of occupational injuries and illnesses for many years, as well as the rate and number of different types of occupational illnesses, and employers, employees, the government, and the public have found this information useful and worthwhile. Separate illness and injury data are particularly useful at the establishment level, where employers and employees can use them to evaluate the establishment's health experience and compare it to the national experience or to the experience of other employers in their industry or their own prior experience. The data are also useful to OSHA personnel performing worksite inspections, who can use this information to identify potential health hazards at the establishment.

Under the final rule, the OSHA 300 form has therefore been modified specifically to collect information on five types of occupational health conditions: musculoskeletal disorders, skin diseases or disorders, respiratory conditions, poisoning, and hearing loss. There is also an "all other illness" column on the Log. To record cases falling into one of these categories, the employer simply enters a check mark in the appropriate column, which will allow these cases to be separately counted to generate establishment-level summary information at the end of the year.

OSHA rejected the option suggested by the UBC and others (see, e.g., Exs. 20, 15: 27, 369, 371) -- to add a single column that would include a code for different types of conditions -- because such an approach could require employers to scan and separately tally entries from the column to determine the total number of each kind of illness case, an additional step that OSHA believes would be unduly burdensome. Because the scanning and tallying are complex, this approach also would be likely to result in computational errors.

In the final rule, two of the illness case columns on the OSHA 300 Log are identical to those on the former OSHA Log: a column to capture cases of skin diseases or disorders and one to capture cases of systemic poisoning. The single column for respiratory conditions on the new OSHA Form 300 will capture data on respiratory conditions that were formerly captured in two separate columns, i.e., the columns for respiratory conditions due to toxic agents (formerly column 7c) and for dust diseases of the lungs (formerly column 7b). Column 7g of the former OSHA Log provided space for data on all other occupational illnesses, and that column has also been continued on the new OSHA 300 Log. On the other hand, column 7e from the former OSHA Log, which captured cases of disorders due to physical agents, is not included on the new OSHA Log form. The cases recorded in former column 7e primarily addressed heat and cold disorders, such as heat stroke and hypothermia; hyperbaric effects, such as caisson disease; and the effects of radiation, including occupational illnesses caused by x-ray exposure, sun exposure and welder's flash. Because space on the form is at a premium, and because column 7e was not used extensively in the past (recorded column 7e cases accounted only for approximately five percent of all occupational illness cases), OSHA has not continued this column on the new OSHA 300 Log.

OSHA has, however, added a new column specifically to capture hearing loss cases on the OSHA 300 Log. The former Log included a column devoted to repeated trauma cases, which were defined as including noise-induced hearing loss cases as well as cases involving a variety of other conditions, including certain musculoskeletal disorders. Several commenters recommended that separate data be collected on hearing loss (see, e.g., Exs. 20, 53X, p.76, 15: 31). Dedicating a column to occupational hearing loss cases will provide a valuable new source of information on this prevalent and often disabling condition. Although precise estimates of the number of noise-exposed workers vary widely by industry and the definition of noise dose used, the EPA estimated in 1981 that about 9 million workers in the manufacturing sector alone were occupationally exposed to noise levels above 85 dBA. Recent risk estimates suggest that exposure to this level of noise over a working lifetime would cause material hearing impairment in about 9 percent, or approximately 720,000, U.S. workers (NIOSH, 1998). A separate column for occupational hearing loss is also appropriate because the BLS occupational injury and illness statistics only report detailed injury characteristics information for those illness cases that result in days away from work. Because most hearing loss cases do not result in time off the job, the extent of occupational hearing loss has not previously been accurately reflected in the national statistics. By creating a separate column for occupational hearing loss cases, and clearly articulating in section 1904.10 of the final rule the level of hearing loss that must be recorded, OSHA believes that the recordkeeping system will, in the future, provide accurate estimates of the incidence of work-related loss of hearing among America's workers.

Column on the Log for Musculoskeletal Disorders

Column 7f of the former Log also was intended to capture cases involving repetitive motion conditions, such as carpal tunnel syndrome, tendinitis, etc. These conditions have been called by many names, including repetitive stress injuries, cumulative trauma disorders, and overuse injuries. OSHA has decided to include a separate column on the Log for musculoskeletal disorders (MSDs), the preferred term for injuries and illnesses of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs, including those of the upper extremities, lower extremities, and back. Many MSDs are caused by workplace risk factors, such as lifting, repetitive motion, vibration, overexertion, contact stress, awkward or static postures, and/or excessive force. The repeated trauma column on the former OSHA Log did not permit an accurate count of musculoskeletal disorders, both because other conditions, such as occupational hearing loss, were included in the definition of repeated trauma and because many musculoskeletal disorders -- including lower back injuries -- were excluded. The column was limited to disorders classified as illnesses, but OSHA instructed employers to record all back cases as injuries rather than illnesses, even though back disorders are frequently associated with exposure to occupational stresses over time (Ex. 2, p. 38).

In its proposal, OSHA asked for comment on the need for a separate column containing information on musculoskeletal disorder (MSD) cases such as low back pain, tendinitis and carpal tunnel syndrome. OSHA received numerous comments opposing the addition of an MSD column to the Log (see, e.g., Exs. 15: 9, 60, 78, 105, 122, 136, 137, 141, 201, 218, 221, 224, 266, 278, 305, 308, 318, 346, 395, 397, 406, 414, 430). These commenters objected on several grounds: because they believed that including such a column would make the forms more complex (Ex. 15: 414), because the column would have "no utility" (Ex. 15: 397), or because the column would only capture a small percentage of total MSD cases (Ex. 15: 210). Several commenters objected because they believed that an MSD column would duplicate information already obtained through the case description (see, e.g., Exs. 15: 9, 105, 210, 221, 406). For example, the law firm of Ogletree, Deakins, Nash, Smoak & Stewart offered comments on behalf of a group of employers known as the ODNSS Coalition, remarking that "The log and system of OSHA recordkeeping would not benefit from a separate column for musculoskeletal disorders. The proposed rules for recording these disorders are clear, and the revisions to the "case description" column appearing on the OSHA Form 300 provide for the ample identification of the disorders, which will enable all interested parties to track and analyze entries of that nature" (Ex. 15: 406). Another group of commenters contended that a separate MSD column would result in an inaccurate picture of MSD incidence because the numbers recorded would increase as a result of the inclusion of lower back MSDs in the cases to be entered in the column (see, e.g., Exs. 15: 305, 308, 318, 346). Representative of these comments is one from the National Association of Manufacturers (NAM):

Given the over-inclusive definitions of the terms "work-related," "injury or illness," "medical treatment" and "MSDs" (in Appendix B), and the fact that, for the first time, back injuries would be included as MSDs, we strongly objected to that idea. Under that approach, the MSD numbers probably would have been huge, would have painted a grossly inaccurate and misleading picture as to the current prevalence of MSDs, and would have been cited as justification for an ergonomics standard. Unless and until those deficiencies are completely eliminated, the NAM remains unalterably opposed to the inclusion of an MSD column on the OSHA Form 300 (Ex. 15: 305).

OSHA also received numerous comments supporting the addition of a separate MSD column on the Log (see, e.g., Exs. 35; 15: 32, 156, 371, 379, 380, 415, 418, 438). For example, the United Food and Commercial Workers stated that:

Of key concern to our membership is the lack of any categorization for musculoskeletal disorders (MSD). A major concern in meatpacking and poultry plants, our committees will now be forced to spend endless hours poring over the logs, reading each individual definition and deciding whether it is a MSD. The logs are often hand written and xerox copies of these are difficult to read. This is a real burden for workers, companies, joint committees and anyone using the logs (Ex. 15: 371).

After a thorough review of the record, and extensive consultation with NIOSH and the BLS to establish the need for such statistics, OSHA has concluded that including a separate column on the final OSHA 300 Log for MSD cases is essential to obtain an accurate picture of the MSD problem in the United States. In 1997, more than 600,000 MSDs resulting in days away from work were reported to the BLS by employers, although determining this number has required close cooperation between OSHA and the BLS and several "special runs" by the BLS (i.e., computer analyses performed especially for OSHA) (see on the Internet at ftp:// OSHA believes that such a column on the OSHA 300 Log will not only permit more complete and accurate reporting of these disorders and provide information on the overall incidence of MSDs in the workplace, it will provide a useful analytical tool at the establishment level. OSHA recognizes that the column will add some complexity to the form, but believes that the additional complexity will be more than offset by the fact that all recordable MSDs will be captured in a single entry on the Log. Thus, the total count of cases in the MSD column will allow employers, employees, authorized representatives, and government representatives to determine, at a glance, what the incidence of these disorders in the establishment is. OSHA does not agree with those commenters who stated that entries in the MSD column will duplicate information recorded in the injury/illness description; the case description column will include additional information, e.g., on the particular type of MSD (back strain, carpal tunnel syndrome, wrist pain, tendinitis, etc.).

OSHA also does not agree with those commenters who argued that including a separate column for MSDs would introduce error into the national statistics on the incidence of MSDs. The views of these commenters are not persuasive because the number of reportable lost-workday MSDs is already being captured in national statistics, albeit under two categories ("injuries" and "illnesses") that are difficult to interpret. In response to comments that including a separate column on the Log will provide OSHA with "justification for an ergonomics standard," the Agency notes that it has already developed and proposed an ergonomics standard despite the absence of a single MSD column on employers' Logs.

Miscellaneous 300 Form Issues

The proposed OSHA Form 300 contained a column designated as the "Employer Use" column. Many employers keep two sets of injury and illness records; one for OSHA Part 1904 purposes and another for internal safety management system purposes. OSHA envisioned that the proposed Employer Use column would be used to tailor the Log to meet the needs of the establishment's particular safety and health program and reduce the practice some employers have adopted of keeping multiple sets of occupational injury and illness records for various purposes. For example, OSHA envisioned that an employer could enter codes in this column to collect data on occupational injuries and illnesses beyond what is required by the OSHA Part 1904 regulation, such as the results of accident investigations, whether the case was accepted by workers' compensation, or whether or not the employee was hospitalized for treatment.

A number of commenters supported the proposed Employer Use column (see, e.g., Exs. 15: 87, 136, 137, 141, 170, 224, 266, 278, 359). Some stated that employers could utilize the column to identify cases based on specific criteria that could be used in their internal safety and health evaluations (see, e.g., Exs. 15: 136, 137, 141, 170, 224, 266, 278, 359). For example, the National Safety Council stated "The Council believes that adding the employer use column to the log will effectively reduce the adverse effects of accountability systems. This will allow employers to identify cases for which supervisors and managers should be held accountable, using company specific criteria" (Ex. 15: 359, p. 14). Another commenter, Kathy Mull, stated "The comment on possible use of the 'employer use column' to note cases not included in internal safety statistics is a possible mechanism to defer pressures on internal performance measures as tied strictly to OSHA recordkeeping" (Ex. 15: 278, p. 4).

Several commenters opposed the addition to the Log of an Employer Use column, however (see, e.g., Exs. 15: 28, 82, 109, 132, 375). Among these was the American Petroleum Institute, which stated "If the revised regulation meets API's recommended system objectives, the 'employer use' column would not be needed. Cases recorded would then be credible, reasonable and meaningful to employers, employees (and to OSHA). * * * OSHA should consider the employer as the primary user of the system" (Ex. 15: 375A, p. 55). Commenters also expressed concern that an Employer Use column could have a negative effect on the use of the data. For example, the Sherman Williams Company stated "It is not necessary to provide column j, for "other" information that may be provided by the employer. It will lead to inconsistent utilization of the proposed form. Delete column j of the proposed Form 300" (Ex. 15: 132, p. 1).

Several other commenters argued for the addition of new data requirements to the OSHA 300 Log, as follows:


Suggested addition to the 300 Log

G. Neil Companies (Ex. 15: 29)

Information explaining which employers must keep the Log should be added to the form

Atlantic Dry Dock Corp. (Ex. 15: 179)

A line to carry over the totals from previous page should be added at the top of the form

Maine Department of Labor (Ex. 15: 41)

The form should include three columns forcase type: a column for days away only, a column for days away and restricted, and a column for restricted only to differentiate the three different types of cases

Ford Motor Company (Ex. 15: 347)

"To facilitate identification, Ford proposes that the employee's last four numbers of his or her social security number be included on the OSHA 300 and 301 Forms * * * The last four numbers of the social security number will greatly assist in employee identification and at the same time offer some measure of confidentiality."

American Trucking Associations (Ex. 15: 397)

"OSHA should add a new column to the proposed OSHA 300 form allowing employers to indicate whether an injury occurred off-site. This recommendation is not novel [ ] the current OSHA 101 form asks if the injury or illness occurred on the employer's premises * * * the inclusion of the 'off-site' column is crucial in determining which fixed facilities maintain abnormally high rates of workplace injuries/illnesses. In addition, this recommendation furthers the goal of requiring motor carriers to record injuries and illnesses to their employees as well as provides valuable information to OSHA and others regarding the employer's lack of control over the site of the injury."

OSHA has not added the fields or columns suggested by commenters to the final 300 or 301 forms because the available space on the form has been allocated to other data that OSHA considers more valuable. In addition, there is no requirement in the final rule for employers to enter any part of an employee's social security number because of the special privacy concerns that would be associated with that entry and employee access to the forms. However, employers are, of course, free to collect additional data on occupational injury and illness beyond the data required by the Agency's Part 1904 regulation.

The OSHA 301 Form

Although the final OSHA 300 Log presents information on injuries and illnesses in a condensed format, the final OSHA 301 Incident Record allows space for employers to provide more detailed information about the affected worker, the injury or illness, the workplace factors associated with the accident, and a brief description of how the injury or illness occurred. Many employers use an equivalent workers' compensation form or internal reporting form for the purpose of recording more detailed information on each case, and this practice is allowed under paragraph 1904.29(b)(4) of the final rule.

The OSHA Form 301 differs in several ways from the former OSHA 101 form it replaces, although much of the information is the same as the information on the former 101 Form, although it has been reworded and reformatted for clarity and simplicity. The final Form 301 does not require the following data items that were included on the former OSHA 101 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's premises; and

-- Name and address of hospital.

OSHA's reasons for deleting these data items from the final 301 form is that most are included on the OSHA Form 300 and are therefore not necessary on the 301 form. Eliminating duplicate information between the two forms decreases the redundancy of the data collected and the burden on employers of recording the data twice. The employee social security number has been removed for privacy reasons. OSHA believes that the information found in several other data fields on the 301 Form (e.g., the employee's name, address, and date of birth) provides sufficient information to identify injured or ill individuals while protecting the confidentiality of social security numbers.

OSHA has also added several items to the OSHA Form 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 emergency room; and

-- Whether the employee was hospitalized overnight as an in-patient (the form now requires a check box entry rather than the name and address of the hospital).

OSHA concludes that these data fields will provide safety and health professionals and researchers with important information regarding the occurrence of occupational injuries and illnesses. The questions pertaining to what the employee was doing, how the injury or illness occurred, what the injury or illness was, and what object or substance was involved have been reworded somewhat from those contained on the former OSHA No. 101, but do not require employers or employees to provide additional information.

Proposed Form 301

The proposed OSHA 301 Injury and Illness Incident Record differed in minor respects from the former OSHA 101. For example, a number of fields would have been eliminated to reduce redundancy between the Log and the Incident Report, and several items would have been added to the Incident Report to obtain additional information about occupational injuries and illnesses. OSHA proposed to add to the Form 301 the following:

-- The date the employee was hired;

-- The time the employee began work;

-- The time the event occurred;

-- Whether the employee was treated at an emergency room;

-- Whether the employee was hospitalized overnight as an in-patient;

-- The equipment, materials or chemicals the employee was using when the event occurred; and

-- The activity the employee was engaged in when the event occurred.

In addition, the proposed regulation would have required the employer to ask several questions (questions 16 through 18) in the same order and using the same language as used on the OSHA forms, in order to obtain more consistent and accurate data about these data items.

A number of commenters approved of the proposed Form 301 (see, e.g., Exs. 21; 15: 32, 153, 246, 324, 369, 374, 380, 396, 427, 441). For example, the International Brotherhood of Teamsters (Ex. 15: 369) stated that the union "[s]upports the [proposed] modifications of the OSHA Injury and Illness Incident Record (OSHA Form 301) to collect more useful information." Other commenters preferred the former OSHA 101 form and urged OSHA to retain it (see, e.g., Exs. 15: 47, 48, 122, 242). For example, the Boiling Springs Fire District (Ex. 15: 47) opposed any changes to the Log or 101 forms, stating "[W]e like the forms we are presently using and feel that the information in these forms is adequate. I am a great believer in the old saying 'if it is not broke -- why fix it'?"

Many of the commenters who specifically addressed the proposed 301 form were concerned about the privacy implications of providing employees, former employees, and employee representatives with access to the OSHA 301 forms. These concerns are addressed in detail in the section of this summary and explanation associated with section 1904.35, Employee involvement. Many other commenters were concerned with the use of equivalent forms (discussed above) and with the requirement to ask certain questions in the same order and using the same language (also discussed above). The remaining comments relating to the proposed forms are grouped into three categories: comments about the proposed case detail questions (proposed questions 9, 10, 16, 17 and18) and the data they would collect; the other fields OSHA proposed to add to the form 101/301; and comments urging the Agency to place additional data fields on the 301 form.

Rewording of the Proposed Case Detail Questions (questions 9, 10, 16, 17, and 18)

OSHA proposed to include five questions on the final OSHA 301 form to gather information about the details of each work-related injury or illness case:

-- Proposed question 9 asked for information about the specific injury or illness (e.g., second degree burn or toxic hepatitis);

-- Proposed question 10 asked for information on the body part or parts affected (e.g., lower right forearm);

-- Proposed question 16 asked for information on all equipment, materials or chemicals the employee was using when the event occurred;

-- Proposed question 17 asked for information on the specific activity the employee was engaged in when the event occurred;

-- Proposed question 18 asked for information on how the injury or illness occurred, including a description of the sequence of events that led up to the incident and the objects or substances that directly injured or made the employee ill.

OSHA received only one comment about the contents of the proposed questions: George R. Cook, Jr., of the Hearing Conservation Services Company, stated:

Questions 9, 10, and 16 on the OSHA 301 form should be worded so that the combination of the answers to these three questions could be used as the answer to Question F. on the OSHA 300. Therefore, if a form 301 is filled out in computerized form, that information could then be carried over to the form 300 thus eliminating the need for duplicate entry (Ex. 15: 188).

As discussed above, final Form 301 no longer requires the employer to include these questions on any equivalent form in the same format or language as that used by the OSHA 301 form. However, any employer wishing to take the approach suggested by Mr. Cook is free to do so.

Several commenters objected to proposed question 16 and questioned why information on all of the materials, equipment or chemicals the employee was using when the event occurred was needed (see, e.g., Exs. 15: 35, 205, 318, 334, 375, 424). For example, the Chocolate Manufacturers Association and the National Confectioners Association, in a joint comment (Ex. 15: 318, p. 9) , stated:

[W]e strongly disagree with the approach reflected in Question 16. We believe the additional information sought by Question 16 (and not by Question 18) is irrelevant and would not, in any event, justify a second set of reporting forms for every recordable incident subject to federal or state OSHA jurisdiction. Requiring a listing of "all" equipment, materials or chemicals an employee might have been using -- without regard to whether they contributed to the injury or illness -- would serve no useful purpose.

OSHA agrees with this assessment and has not included this question from the final 301 form.

The final form solicits information only on the object or substance that directly harmed the employee. The final 301 form contains four questions eliciting case detail information (i.e., what was the employee doing just before the incident occurred?, what happened?, what was the injury or illness?, and what object or substance directly harmed the employee?). The language of these questions on the final 301 form has been modified slightly from that used in the proposed questions to be consistent with the language used on the BLS Survey of Occupational Injuries and Illnesses collection form. The BLS performed extensive testing of the language used in these questions while developing its survey form and has subsequently used these questions to collect data for many years. The BLS has found that the order in which these questions are presented and the wording of the questions on the survey form elicit the most complete answers to the relevant questions. OSHA believes that using the time-tested language and ordering of these four questions will have the same benefits for employers using the OSHA Form 301 as they have had for employers responding to the BLS Annual Survey. Matching the BLS wording and order will also result in benefits for those employers selected to participate in the BLS Annual Survey. To complete the BLS survey forms, employers will only need to copy information from the OSHA Injury and Illness Incident Report to the BLS survey form. This should be easier and less confusing than researching and rewording responses to the questions on two separate forms.

The Data Fields OSHA Proposed to Change on the Proposed 301 Form

Proposed field 5, Date hired. OSHA proposed to add this data field to collect additional data about the work experience of the injured or ill worker. Such data can be very useful for employers, employees, and OSHA because it enables researchers to discover, for example, whether newly hired or inexperienced workers experience relatively more injuries and illnesses than more experienced workers. Several commenters questioned the value of the data OSHA proposed to collect in field 5 (see, e.g., Exs. 15: 151, 152, 179, 180, 201, 347, 409). For example, Caterpillar Inc. (Ex. 15: 201) recommended that "[i]tem 5 of Form 301 be deleted. The date hired is not a significant factor in analyzing injury causation. If any similar data is necessary, it should be the time on the current job, which is a better indicator of relative job skills or work experience." Several commenters asked for clarification of the "date hired" phrase (see, e.g., Exs. 15: 151, 152, 179, 180). For example, Atlantic Marine, Inc. (Ex. 15: 180) asked "What date shall be recorded as the "Date Hired" if an employee is laid off, is terminated, or resigns and then is rehired? Should the date of initial hire or the date of rehire be recorded?'

OSHA continues to believe that the data gathered by means of the "date hired" field will have value for analyzing occupational injury and illness data and has therefore included this data field on the final OSHA 301 form. These data are useful for analyzing the incidence of occupational injury and illness among newly hired workers and those with longer tenure. OSHA is aware that the data collected are not a perfect measure of job experience because, for example, an employee may have years of experience doing the same type of work for a previous employer, and that prior experience will not be captured by this data field. Another case where this data field may fail to capture perfect data could occur in the case of an employee who has worked for the same employer for many years but was only recently reassigned to new duties. Despite cases such as these, inclusion of this data field on the Form 301 will allow the Agency to collect valid data on length of time on the job for most employment situations.

For the relatively infrequent situation where employees are hired, terminated, and then rehired, the employer can, at his or her discretion, enter the date the employee was originally hired, or the date of rehire.

Proposed field 6, Name of health care provider; proposed field 7, If treatment off site, facility name and address; and proposed field 8, Hospitalized overnight as in-patient? The former OSHA Form 101 included similar data fields: former field 18 collected the "name and address of physician," while former field 19 collected data on "if hospitalized, name and address of hospital." Several commenters discussed these data fields and questioned their usefulness for analytical purposes (see, e.g., Exs. 15: 95, 151, 152, 179, 180, 347, 409). The Pacific Maritime Association (Ex. 15: 95) noted the difficulty of collecting the data requested by proposed data fields 5, 6, 7, and 13 as they pertain to longshoremen:

Items 5, 6, 7, and 13 on the OSHA Form 301 presents problems for direct employers of longshoremen. Longshoremen are hired on a daily basis, select their own health care provider; may be treated at a facility of their choice, and may not return to the same employer when returning to work.

Several commenters asked OSHA to clarify the data that OSHA was asking for in these data fields (see, e.g., Exs. 15: 51, 152, 179, 180, 347, 409). For example, the Ford Motor Company (Ex. 15: 347) asked:

[I]tem 6, "Name of health care provider" is unclear in terms of the general instructions. Who is considered the primary health care provider? Is it the individual who sees the employee on the initial medical visit, the individual who renders the majority of care for a case, or the individual who renders care if the employee is referred to an off-site provider on the initial visit? We feel that the last choice is the correct response. We also question the benefit of providing this information. The criteria for OSHA recordability focuses on the care provided, and not on the individual providing the care.

Item 7, "If treated off-site, facility name and address" requires more specific instructions as to when this field must be completed. Is this to be completed if the employee is referred to an outside provider on the initial visit, or is this to be completed should the individual be referred out later in the course of the injury or illness? We feel that the former is the correct response. We also question the benefit of providing this information.

OSHA has decided to continue to collect information on final Form 301 concerning the treatment provided to the employee (proposed data field 7). OSHA's experience indicates that employers have not generally had difficulty in providing this information, either in the longshoring or any other industry. The data in this field is particularly useful to an OSHA inspector needing additional information about the medical condition of injured or ill employees. (OSHA does not request this medical information without first obtaining a medical access order under the provisions of 29 CFR part 1913, Rules Concerning OSHA Access to Employee Medical Records.) The final OSHA 301 Form therefore includes a data field for information on the off-site treating facility.

The final 301 Form also includes a data field requesting the name of the health care professional seen by the injured or ill employee. The employer may enter the name either of the physician or other health care professional who provided the initial treatment or the off-site treatment. If OSHA needs additional data on this point, the records of the health care professional listed will include both the name of the referring physician or other health care professional as well as the name of the health care professional to whom the employee was referred for specialized treatment.

Several commenters asked OSHA to collect data on whether a hospitalization involved in-patient treatment or was limited to out-patient treatment (see, e.g., Exs. 15: 151, 152, 179, 180). For example, Alabama Shipyard, Inc. recommended "Instead of asking in [proposed] item 8 if an employee is hospitalized overnight as in-patient, have a check box to record whether the treatment was as an in-patient or outpatient status" (Ex. 15: 152). OSHA agrees that the additional information suggested by this commenter would be useful, and final OSHA Form 301 asks two hospitalization-related questions: Was employee treated in an emergency room?, and Was employee hospitalized overnight as an in-patient?

Proposed question 13, date of return to work at full capacity: The proposed Injury and Illness Incident Report (Form 301) contained a data field requiring the date the employee returned to work at full capacity if the case involved restricted work activity or days away from work. This field was included to provide information regarding the length of time the employee was partially or fully incapacitated by the injury or illness. However, because the final rule requires employers to record day counts both for cases involving days away from work and cases involving job transfer or restriction (see discussion above), the date at which an employee returned to work at full capacity field is no longer necessary and does not appear on the final form.

Proposed questions 14, Time of event and 15, Time employee began work: No commenter objected to the inclusion of proposed data field 14, Time of event, and only two commenters objected to proposed data field 15, Time employee began work (see, e.g., Exs. 15: 347, 409). Both of these commenters, the Ford Motor Company and the American Automobile Manufacturers Association, stated that:

"Time employee began work," is of questionable benefit. Many employees perform a variety of jobs during the day or may have their job changed during the day (work added or subtracted). This question is burdensome and offers little benefit for data analysis.

Several commenters discussed the way the proposed form collected the new information on the time of the accident (see, e.g., Exs. 15: 151, 152, 179, 180, 260, 262, 265, 347, 401, 409). Several of these commenters suggested that OSHA do away with the am/pm designation and use a 24-hour clock instead (see, e.g., Exs. 15: 151, 152, 179, 180). The comments of Atlantic Marine (Ex. 15: 152) are representative:

Change the form from using A.M. or P.M. to using a 24-hour clock. A 24-hour clock is much easier to use in drawing conclusions on the relationship between injuries/illnesses and the time of day that they occurred. OSHA may find that many employers are currently using a 24-hour clock system.

Another group of commenters suggested that OSHA add am/pm boxes the employer could simply check off as an easier way to collect the data (see, e.g., Exs. 15: 260, 262, 265, 401). For example, the Edison Electric Institute (Ex. 15: 401) suggested that "Questions 14 and 15 should include a box which can be checked for AM and PM to reduce the possibility that this information will be omitted."

OSHA has included on the final 301 form the two questions asking for data on the time of the event and the time the employee began work so that employers, employees and the government can obtain information on the role fatigue plays in occupational injuries and illness. Both questions (i.e., on time of event and time employee began work) must be included to conduct this analysis. Thus, OSHA has included both fields on the final Form 301. In addition, the form has been designed so that the employer can simply circle the a.m. or p.m. designation. OSHA believes that this approach will provide the simplest, least burdensome method for capturing these data, and that using a 24 hour clock system would be cumbersome or confusing for most employers.

Data fields for the name and phone number of the person completing the form. Both the former and proposed Incident Report forms included fields designed to obtain information on the person who completed the form. The former OSHA 101 form asked for the date of report, the name of the preparer, and that person's official position. The proposed form would have carried forward the name and title of the preparer and the date, and added the person's phone number. OSHA received very little comment on these proposed data fields. The Ford Motor Company (Ex. 15: 347) and the American Automobile Manufacturers Association (Ex. 15: 409) both made the following comment:

The "Completed by" field could be modified to consolidate name and title. This would be consistent with the manner in which most health care professionals routinely sign their name.

The "Phone number required" item should refer to the medical department's number or the general number of the establishment, and be included with the establishment's name and address at the top of the form. This would decrease the paperwork burden by allowing the use of a stamp or a pre-typed format as opposed to completing a phone number on each OSHA Form 301.

The final OSHA Form 301 permits the employer to include the name and title in either field, as long as the information is available. As to the phone number, the employer may use whatever number is appropriate that would allow a government representative accessing the data to contact the individual who prepared the form.

Case File number: The former OSHA 101 form did not include a method for linking the OSHA 300 and 301 forms. Any linking had to be accomplished via the employee's name, department, occupation, and the other information from the forms. OSHA proposed to add a field to the OSHA 301 form that would use the same case number as that on the OSHA 300 form, thus making it easier for employers, employees and government representatives to match the data from the two forms. Two commenters objected to the addition of such a case file number (Exs. 15: 217, 334). The American Forest & Paper Association (AF&PA) argued:

Another issue of concern to AF&PA is the requirement for a unique case or file number on the Form 300 and Form 301 to facilitate cross-referencing between the forms. We believe there is sufficient data (employee name, date of birth, date of injury) on all existing state First Report of Injury forms to readily cross-reference the First Report to the entry on the Form 300. A uniform requirement for employers to create an indexing system would serve no useful purpose. Furthermore, it would be unduly burdensome for many affected companies except in those cases when there is a reason to maintain the confidentiality of the affected employee's name (Ex. 15: 334).

OSHA continues to believe that easy linkage of the Forms 300 and 301 will be beneficial to all users of these data. Thus, the final Form 301 contains a space for the case file number. The file/case number is required on both forms to allow persons reviewing the forms to match an individual OSHA Form 301 with a specific entry on the OSHA Form 300. Access by authorized employee representatives to the information contained on the OSHA Form 301 is limited to the information on the right side of the form (see § 1904.35(b)(2)(v)(B) of the final rule). The case/file number is the data element that makes a link to the OSHA Form 300 possible. OSHA believes that this requirement will add very little burden to the recordkeeping process, because the OSHA Log has always required a unique file or case number. The final Form 301 requirement simply requires the employer to place the same number on the OSHA 301 form.

Suggested Fields

Commenters submitted suggestions for other data fields that they believed should be included on the OSHA Form 301, as follows.


Suggested addition to the 301 incident report, and OSHA response

American Industrial Hygiene Association
(AIHA) (Ex. 15: 153).

"AIHA suggests a corrective (AIHA) (Ex. 15: 153). action box on the OSHA 301. This form is often used as an employer's accident report, and this would encourage employers to seek action as appropriate to prevent reoccurrence."

OSHA has not included this suggested change because the 301 form is not designed to be an accident investigation form, but is used to gather information on occupational injuries and illnesses. Corrective actions would thus not be an appropriate data field for this form.

(Exs. 15: 179, 180, 151, 152).

"A space is needed for recording an employee identification number. This number is important for maintaining records. Some employers use the employee's social security number, while others have a unique, employer generated identifier for each employee."


OSHA believes the combination of other data fields (case number, employee name, address and date of birth) provides the user the ability to identify individuals when necessary.

Ogletree, Deakins, Nash, Smoak & Stewart (Ex. 15: 406).

Substituting "regular job title" would provide for effective use of Form 301 in conducting safety and health analysis of the workplace.

The OSHA 300 Log asks for the employee's job title. OSHA does not believe there is a need to ask for the data on both forms.

American Petroleum Institute (Ex. 15: 375).

"[t]he supplemental data should contain all information necessary to make recordkeeping decisions, and to facilitate certification of the logs at year end. For this reason, the following should be added to what OSHA proposes for the supplemental data: company name, establishment name, employee social security number, regular job title, "new injury or illness?", "loss of consciousness?", days away from work, first date absent, est. duration of absence, "date days-away cases returned to work?," "result in restricted activity?", "job transfer?", "termination of employment?"

OSHA has not included these data fields on the final form because the Agency believes that doing so would duplicate the information on the OSHA 300 form. There is also no need to use the OSHA 301 form to document all the employer's recordkeeping decisions.

Ford Motor Company and the American Automobile Manufacturers Association (Exs. 15: 347, 409).

"AAMA proposes the OSHA Form 301 include the establishment name and address at the top of the form. This will assist not only the employer, but OSHA as well, to avoid any confusion over records in which one medical department may serve several establishments. Also, it will be helpful in those cases where a company employee, who works predominately at one particular facility, sustains an injury or illness at another company establishment."

The establishment name and location are included on the OSHA Form 300. In an effort to identify and eliminate duplication of data, OSHA has not included this data item on the OSHA Form 301.

Building and Construction Trades
AFL-CIO (Ex.15: 394).

For every potentially Department, AFL-CIO (Ex.15: 394). recordable injury or illness, the employer shall record: case number, date case reported and name of employee.
-- Job title of employee.
-- Date of injury or illness.
-- Time of event or exposure.
-- Time employee began work.
-- Specific description of injury or illness.
-- Location where the accident or exposure occurred (e.g. loading dock).
-- Facility or Project (e.g. Hackensack factory, or Dreamwood Subdevelopment).
-- Body part affected.
-- Equipment, tools, materials, or chemicals being used.
-- Specific activity when injured or upon onset of illness.
-- How injury or illness occurred.

OSHA notes that the final OSHA 301 form contains many of these data elements. The Agency believes that the remaining fields are unnecessary or duplicative of information already found on the OSHA 300 Log.


The final forms employers will use to keep the records of those occupational injuries and illnesses required by the final rule to be recorded have been revised to reflect the changes made to the final rule, the record evidence gathered in the course of this rulemaking, and a number of changes designed to simplify recordkeeping for employers. In addition, the forms have been revised to facilitate the use of equivalent forms and employers' ability to computerize their records.

Subpart D. Other OSHA injury and illness recordkeeping requirements

Subpart D of the final rule contains all of the 29 CFR Part 1904 requirements for keeping OSHA injury and illness records that do not actually pertain to entering the injury and illness data on the forms. The nine sections of Subpart D are:

-- Section 1904.30, which contains the requirements for dealing with multiple business establishments;

-- Section 1904.31, which contains the requirements for determining which employees' occupational injuries and illnesses must be recorded by the employer;

-- Section 1904.32, which requires the employer to prepare and post the annual summary;

-- Section 1904.33, which requires the employer to retain and update the injury and illness records;

-- Section 1904.34, which requires the employer to transfer the records if the business changes owners;

-- Section 1904.35, which includes requirements for employee involvement, including employees' rights to access the OSHA injury and illness information;

-- Section 1904.36, which prohibits an employer from discriminating against employees for exercising their rights under the Act;

-- Section 1904.37, which sets out the state recordkeeping regulations in OSHA approved State-Plan states; and

-- Section 1904.38, which explains how an employer may seek a variance from the recordkeeping rule.

Section 1904.30 Multiple Establishments

Section 1904.30 covers the procedures for recording injuries and illnesses occurring in separate establishments operated by the same business. For many businesses, these provisions are irrelevant because the business has only one establishment. However, many businesses have two or more establishments, and thus need to know how to apply the recordkeeping rule to multiple establishments. In particular, this section applies to businesses where separate work sites create confusion as to where injury and illness records should be kept and when separate records must be kept for separate work locations, or establishments. OSHA recognizes that the recordkeeping system must accommodate operations of this type, and has adopted language in the final rule to provide some flexibility for employers in the construction, transportation, communications, electric and gas utility, and sanitary services industries, as well as other employers with geographically dispersed operations. The final rule provides, in part, that operations are not considered separate establishments unless they continue to be in operation for a year or more. This length-of-site-operation provision increases the chances of discovering patterns of occupational injury and illness, eliminates the burden of creating OSHA 300 Logs for transient work sites, and ensures that useful records are generated for more permanent facilities.

OSHA's proposed rule defined an establishment as a single physical location that is in operation for 60 calendar days or longer (61 FR 4059), but did not provide specific provisions covering multiple establishments. In the final rule, the definition of establishment is included in Subpart G, Definitions.

The basic requirement of § 1904.30(a) of this final rule states that employers are required to keep separate OSHA 300 Logs for each establishment that is expected to be in business for one year or longer. Paragraph 1904.30(b)(1) states that for short-term establishments, i.e., those that will exist for less than a year, employers are required to keep injury and illness records, but are not required to keep separate OSHA 300 Logs. They may keep one OSHA 300 Log covering all short-term establishments, or may include the short-term establishment records in logs that cover individual company divisions or geographic regions. For example, a construction company with multi-state operations might have separate OSHA 300 Logs for each state to show the injuries and illnesses of its employees engaged in short-term projects, as well as a separate OSHA 300 Log for each construction project expected to last for more than one year. If the same company had only one office location and none of its projects lasted for more than one year, the company would only be required to have one OSHA 300 Log.

Paragraph 1904.30(b)(2) allows the employer to keep records for separate establishments at the business' headquarters or another central location, provided that information can be transmitted from the establishment to headquarters or the central location within 7 days of the occurrence of the injury or illness, and provided that the employer is able to produce and send the OSHA records to each establishment when § 1904.35 or § 1904.40 requires such transmission. The sections of the final rule are consistent with the corresponding provisions of the proposed rule.

Paragraph 1904.30(b)(3) states that each employee must be linked, for recordkeeping purposes, with one of the employer's establishments. Any injuries or illnesses sustained by the employee must be recorded on 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 employees are included in a company's records. If the establishment is in an industry classification partially exempted under § 1904.2 of the final rule, records are not required. Under paragraph 1904.30(b)(4), if an employee is injured or made ill while visiting or working at another of the employer's establishments, then the injury or illness must be recorded on the 300 Log of the establishment at which the injury or illness occurred.

How Long Must an Establishment Exist to Have a Separate OSHA Log

As previously stated, the final rule provides that an establishment must be one that is expected to exist for a year or longer before a separate OSHA log is required. Employers are permitted to keep separate OSHA logs for shorter term establishments if they wish to do so, but the rule does not require them to do so. This is a change from the proposed rule, which would have required an establishment to be in operation for 60 days to be considered an "establishment" for recordkeeping purposes. The proposed 60-day threshold would have changed the definition of "establishment" used in OSHA's former recordkeeping rule, because that rule included a one-year-in-operation threshold for defining a fixed establishment required to keep a separate OSHA Log (Ex. 2, p. 21). The effect of the proposed change in the threshold would have been to increase the number of short-duration operations required to maintain separate injury and illnesses records.

The majority of the comments OSHA received on this issue opposed the decrease in the duration of the threshold from one year to 60 calendar days, primarily because commenters felt that requiring temporary facilities to maintain records would be burdensome, costly and would not increase the utility of the records (see, e.g., Exs. 21, 15: 21, 43, 78, 116, 122, 123, 145, 170, 199, 213, 225, 254, 272, 288, 303, 304, 305, 308, 338, 346, 349, 350, 356, 358, 359, 363, 364, 375, 389, 392, 404, 412, 413, 423, 424, 433, 437, 443, 475). For example, the Associated Builders and Contractors, Inc. (ABC):

[d]isagrees that sites in existence for as little as 60 days need separate injury and illness records. The redefinition of "establishment" will cause enormous problems for subcontractors in a variety of construction industries. Even employers with small workforces could be on the site of several projects at any one time, and in the course of the year could have sent crews to hundreds of sites. Though they may be on such sites for only brief periods of time, they will be required under this proposal to create separate logs for each site, increasing greatly their paperwork requirements without increasing the amount of information available to their employees (Ex. 15: 412).

In addition, many of these commenters argued that a 60-day threshold would be especially burdensome because it would capture small work sites where posting of the annual summary or mailing the summary to employees would make little sense because so few cases would be captured on each Log. The majority of these commenters suggested that OSHA retain the former one-year duration threshold in the definition of establishment (see, e.g., Exs. 15: 78, 123, 225, 254, 305, 356, 389, 404).

Other commenters expressed concern that the proposed 60-day threshold would create an unreasonable burden on employers in service industries like telecommunications and other utilities, whose employees typically report to a fixed location, such as a service center or garage, but perform tasks at transient locations that remain in existence for more than 60 days. These commenters felt that classifying such locations as "establishments" and creating thousands of new OSHA Logs, would have "no benefit to anyone" (Ex. 15: 199) (see also Exs. 15: 65, 170, 213, 218, 332, 336, 409, 424).

In contrast, commenters who supported the 60-day threshold worried that injuries and illnesses occurring at transient locations would never be accounted for without such a provision (see, e.g., Exs. 15: 9, 133, 310, 369, 425). Some urged OSHA to adopt an even shorter time-in-operation threshold (see, e.g., Exs. 15: 369, 418, 429). For example, the International Brotherhood of Teamsters (IBT) stated that they "[w]ould strongly support reducing the requirement to thirty days to cover many low level housing construction sites, and transient operations, similar to mobile amusement parks" (Ex. 15: 369). The AFL-CIO agreed: "* * * the 60-day time period is still too long. We believe that to truly capture a majority of these transient work sites, a 30-day time period would be more realistic. A 30-day time period as the trigger would capture construction activities such as trenching, roofing, and painting projects which will continue to be missed if a 60-day time period is used" (Ex. 15: 418). OSHA agrees that under the proposed provisions there was a potential for injuries and illnesses to be missed at short term establishments and for employees who did not report to fixed establishments. Therefore, §§ 1904.30(b)(1) and (b)(3) have been added to make it clear that records (but not a separate log) must be kept for short-term establishments lasting less than one year, and that each employee must be linked to an establishment.



The United Parcel Service (UPS) recommended that OSHA craft its rule to coincide with a company's personnel records system, stating "[t]he unit for which an employer maintains personnel records is presumptively appropriate and efficient; accordingly, OSHA should not mandate a rule that conflicts with a company's current personnel units policy" (Ex. 15: 424). OSHA recognizes that employers would prefer OSHA to allow companies to keep records in any way they choose. However, OSHA believes that allowing each company to decide how and in what format to keep injury and illness records would erode the value of the injury and illness records in describing the safety and health experience of individual workplaces and across different workplaces and industries. OSHA has therefore decided not to adopt this approach in the final rule, but to continue its longstanding requirement requiring records to be kept by establishment.

OSHA has reviewed all of the comments on this issue and has responded by deleting any reference to a time-in-operation threshold in the definition of establishment but specifying a one-year threshold in section 1904.30(a) of the final rule. OSHA finds, based on the record evidence, that the one-year threshold will create useful records for stable establishments without imposing an unnecessary burden on the many establishments that remain in existence for only a few months.

Centralized Recordkeeping

As previously stated, the proposed rule did not include a specific section covering multiple establishments. The proposal did require that records for employees not reporting to any single establishment on a regular basis should be kept at each transient work site, or at an established central location, provided that records could be obtained within 4 hours if requested as proposed.

Most commenters supported provisions that would allow the employer to keep records at a centralized location (see, e.g., Exs. 20, 21, 15: 9, 38, 48, 136, 137, 141, 154, 173, 203, 213, 224, 234, 235, 254, 260, 262, 265, 266, 272, 277, 278, 288, 303, 321, 336, 350, 367, 373, 375, 401, 409). Many, however, disagreed with the requirement that records be produced within 4 hours if requested by an authorized government official. Those comments are discussed in the preamble for § 1904.40, Providing records to government representatives. The only other concern commenters expressed about centralized recordkeeping was that centralized records, like computerized records, would make it more difficult for employees to access the records (see, e.g., Exs. 15:379, 380, 418, 438).

OSHA does not believe that centralization of the records will compromise timely employee or government representative access to the records. To ensure that this is the case, centralization under § 1904.30(b)(2) is allowed only if the employer can produce copies of the forms when access to them is needed by a government representative, an employee or former employee, or an employee representative, as required by §§ 1904.35 and 40.

Recording Injuries and Illnesses Where They Occur

Proposed section 1904.7, Location of records, and section 1904.11, Access to records, covered recordkeeping requirements for employees who report to one establishment but are injured or made ill at other locations of the same company. Specifically, these sections required that records for employees reporting to a particular establishment but becoming ill or injured at another establishment within the same company be kept at the establishment in which they became injured or ill. This was derived from OSHA's longstanding interpretation that employees' cases should be recorded where they occur, if it is at a company establishment (April 24, 1992 letter of interpretation to Valorie A. Ferrara of Public Service Electric and Gas Company). Several commenters objected to the proposed requirement that an employee's injury or illness be recorded on the log of the establishment where the injury occurred, rather than on the log of the establishment they normally report to (see, e.g., Exs.15: 60, 107, 146, 184, 199, 200, 232, 242, 263, 269, 270, 329, 335, 343, 356, 375, 377). The comments of the B.F. Goodrich Company (Ex. 15: 146) are representative:

[t]he requirement for a company to log a visiting employee's injury or illness on the log of the company establishment that they are visiting rather than on the log of their normal work establishment, is not consistent with the data collection process. As proposed, the rule requires the facility to record the injury or illness and not the hours worked by the visiting employee. These individuals would not normally be counted in the number of employees at the visited site nor in the manhours worked at that site. Recording of cases from visiting employees would improperly skew the incidence rates of both facilities. This approach is particularly inappropriate in the case of an illness, since the case may be a result of accumulated exposures which have nothing to do with the site visited during the onset of the illness. Alternately, an injury or illness could manifest after the visitor leaves the facility.

OSHA disagrees with these commenters about where the injuries and illnesses should be recorded. For the vast majority of cases, the place where the injury or illness occurred is the most useful recording location. The events or exposures that caused the case are most likely to be present at that location, so the data are most useful for analysis of that location's records. If the case is recorded at the employee's home base, the injury or illness data have been disconnected from the place where the case occurred, and where analysis of the data may help reveal a workplace hazard. Therefore, OSHA finds that it is most useful to record the injury or illness at the location where the case occurred. Of course, if the injury or illness occurs at another employer's workplace, or while the employee is in transit, the case would be recorded on the OSHA 300 Log of the employee's home establishment.

For cases of illness, two types of cases must be considered. The first is the case of an illness condition caused by an acute, or short term workplace exposure, such as skin rashes, respiratory ailments, and heat disorders. These illnesses generally manifest themselves quickly and can be linked to the workplace where they occur, which is no different than most injury cases. For illnesses that are caused by long-term exposures or which have long latency periods, the illness will most likely be detected during a visit to a physician or other health care professional, and the employee is most likely to report it to his or her supervisor at the home work location.

Recording these injuries and illnesses could potentially present a problem with incidence rate calculations. In many situations, visiting employees are a minority of the workforce, their hours worked are relatively inconsequential, and rates are thus unaffected to any meaningful extent. However, if an employer relies on visiting labor to perform a larger amount of the work, rates could be affected. In these situations, the hours of these personnel should be added to the establishment's hours of work for rate calculation purposes.

Section 1904.31 Covered employees

Final Rule Requirements and Legal Background

Section 1904.31 requires employers to record the injuries and illnesses of all their employees, whether classified as labor, executive, hourly, salaried, part-time, seasonal, or migrant workers. The section also requires the employer to record the injuries and illnesses of employees they supervise on a day-to-day basis, even if these workers are not carried on the employer's payroll.

Implementing these requirements requires an understanding of the Act's definitions of "employer" and "employee." The statute defines "employer," in relevant part, to mean "a person engaged in a business affecting 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). The term "employee" means "an employee of an employer who is employed in a business of his employer which affects interstate commerce." 29 U.S.C. 652(6). Thus, any individual or entity having an employment relationship with even one worker is an employer for purposes of this final rule, and must fulfill the recording requirements for each employee.

The application of the coverage principles in this section presents few issues for employees who are carried on the employer's payroll, because the employment relationship is usually well established in these cases. However, issues sometimes arise when an individual or entity enters into a temporary relationship with a worker. The first question is whether the worker is an employee of the hiring party. If an employment relationship exists, even if temporary in duration, the employee's injuries and illnesses must be recorded on the OSHA 300 Log and 301 form. The second question, arising in connection with employees provided by a temporary help service or leasing agency, is which employer -- the host firm or the temporary help service -- is responsible for recordkeeping.

Whether an employment relationship exists under the Act is determined in accordance with established common law principles of agency. At common law, a self-employed "independent contractor" is not an employee; therefore, injuries and illnesses sustained by independent contractors are not recordable under the final Recordkeeping rule. To determine whether a hired party is an employee or an independent contractor under the common law test, the