OSHA delays enforcement of record-keeping rule

Employers have 120 days before citations begin

Enforcement of the new record-keeping rule has been delayed for 120 days as part of a settlement between the Occupational Safety and Health Administration (OSHA) and the National Association of Manufacturers. OSHA will offer compliance assistance and will not issue citations during that period, "provided employers strive to meet their record-keeping obligations and agree to make corrections necessary to bring their records into compliance," the agency announced. The settlement also emphasizes that employers have the authority to determine whether an injury is work-related. A compliance directive that details how the regulation will be interpreted by inspectors is due shortly.

"The relationship between the workplace and the injury must be discernible in order for an employer to record it," says Baruch Fellner, a Washington, DC lawyer who represents the manufacturers’ association. "Clearly that is an appropriate interpretation of the regulation, which could have been read to require employers to record anything and everything unless the injury was related exclusively to nonwork-related [causes]," she says.

The National Association of Manufacturers filed suit against OSHA in March, targeting several provisions of the record-keeping standard. In settling the suit, OSHA agreed to clarify several issues:

• Work-relatedness.

OSHA advises 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 pre-existing condition and none of the rule’s exceptions to work-relatedness applies." The employer decides whether work-related events or exposures caused or contributed to an injury or illness or whether they aggravated a pre-existing condition. If a citation is issued, the burden of proof would be on OSHA to prove that the injury or illness was work-related and should have been recorded.

• Restricted work.

"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: An employee experiences minor musculoskeletal discomfort. A health care professional determines that the employee is fully able to perform his or her job functions. The employer assigns a work restriction to that employee to prevent a more serious condition from developing," the agency says.

• Reporting.

When an employee reports an injury or illness, it is not necessarily recordable on the OSHA log. "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," OSHA says.

• Oxygen administration.

"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," according to OSHA.