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November 26, 2001
OSHA Settles Over Recordkeeping Rule
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new recordkeeping rule of the Occupational Safety and Health Administration will take effect as scheduled on January 1, but in settling a lawsuit last week, the agency agreed to focus initially on compliance assistance, rather than enforcement.

OSHA reached the settlement with the National Association of Manufacturers, which had sued over the rule in March.

A key provision in the settlement is the agreement that OSHA compliance officers will focus initially on compliance assistance. As a result, according to OSHA, no citations will be issued for violations of the recordkeeping rule during the first 120 days of the new year, provided employers strive to meet their recordkeeping obligations and agree to make corrections necessary to bring their records into compliance.

"This agreement sets the tone for the kind of relationship we want with NAM, other industry leaders and all employers," said John Henshaw, OSHA Administrator. "It demonstrates that we can work together for the common goal of worker safety and health. We want employers to have every opportunity to fully understand the key provisions of the recordkeeping rule. This agreement helps pave the way to that understanding."

NAM filed a lawsuit in March 2001 challenging a number of provisions in OSHA's revised recordkeeping rule. As part of the settlement, announced last week, NAM will withdraw its challenge. OSHA has agreed to clarify certain provisions in the rule.

One of the principal issues in NAM's lawsuit was what constitutes a work-related injury. In the settlement, OSHA explains that a case is work-related if, and only if, a work event or exposure is a discernible cause of the injury or illness, or of a significant aggravation to a preexisting condition and none of the rule's exceptions to work-relatedness applies.

Employers must determine whether it is more likely than not that work events or exposures caused or contributed to the injury or illness, or significantly aggravated a pre-existing condition.

Should an employer decide a case is not work-related, and OSHA subsequently issues a citation for failure to record, the burden of proof would then be on OSHA to show the injury or illness was work-related.

Other aspects of the rule that OSHA agreed to clarify include the following:

- The rule continues OSHA's existing policy that an employer need not record, as a restricted work case, a case in which the following three conditions are present: (1) an employee experiences minor musculoskeletal discomfort; (2) a health care professional determines that the employee is fully able to perform his or her job functions; and (3) the employer assigns a work restriction to that employee to prevent a more serious condition from developing.

- An employee's report of an injury or illness does not automatically establish the existence of the injury or illness for recordkeeping purposes. The employer must first decide whether an injury or illness has occurred. If the employer is uncertain, he or she may refer the employee to a physician or other health care professional for evaluation.

- An employer must record a case in which oxygen is administered to an employee who has been exposed to a substance and exhibits symptoms of an injury or illness. However, if oxygen is administered purely as a precautionary measure where no symptoms have been exhibited, the case is not recordable.

The language specified in the settlement will be incorporated into the forthcoming compliance directive scheduled for publication this month. The directive guides OSHA's compliance officers in enforcing the recordkeeping rule and ensures consistent inspection procedures are followed.

OSHA revised its recordkeeping requirements last January. The final rule is effective on Jan. 1, 2002; however, OSHA announced last month that three provisions of the rule will be delayed for one year. They include the criteria for recording work-related hearing loss; the rule's definition of "musculoskeletal disorder" (MSD); and the requirement that employers check the MSD column on the OSHA log.

OSHA is expected to publish the settlement agreement in the Federal Register within the next 30 days.


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