DLLR's Division of Labor and Industry

 

MOSH Instruction 02-4 - MOSH Recordkeeping Policy and Procedures Manual Chapter 2 - Enforcement Policies and Procedures - Maryland Occupational Safety and Health (MOSH)

 

I. Summary of the New Rule. The central requirements in OSHA's recordkeeping rule, 29 CFR 1904, are summarized below.

A. Coverage. The rule requires employers to keep records of occupational deaths, injuries and illnesses, and to make certain reports to OSHA and the Bureau of Labor Statistics. Smaller employers (with 10 or fewer workers) and employers who have establishments in certain retail, service, finance, real estate or insurance industries are not required to keep these records. However, they must report any occupational fatalities or catastrophes that occur in their establishments to MOSH, and they must participate in government surveys if they are asked to do so.

B. Forms. Employers who operate establishments that are required by the rule to keep injury and illness records are required to complete three forms: the OSHA 300 Log of Work-Related Injuries and Illnesses, the annual OSHA 300A Summary of Work-Related Injuries and Illnesses, and the OSHA 301 Injury and Illness Incident Report. Employers are required to keep separate 300 Logs for each establish­­ment that they operate that is expected to be in operation for one year or longer. The Log must include injuries and illnesses to employees on the employer's payroll as well as injuries and illnesses of other employees the employer supervises on a day-to-day basis, such as temporary workers or contractor employees who are subject to daily supervision by the employer. Within seven calendar days of the time the fatality, injury, or illness occurred, the employer must enter any case that is work-related, is a new case, and meets one or more of the recording criteria in the rule on the Log and Form 301.

C. Work-Relationship. Section 1904.5(a) states that "[the employer] must consider an injury or illness to be work-related if an event or exposure in the work environ­ment either caused or contributed to the resulting condition. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment...." Under this language, a case is presumed work-related if, and only if, an event or exposure in the work environment is a discern­able cause of the injury or illness or of a significant aggravation to a pre-existing condition. The work event or exposure need only be one of the discernable causes; it need not be the sole or predominant cause.

  • Section 1904.5(b)(2)(ii) states that a case is not recordable if it Ainvolves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside of the work environment.@ This language is intended as a restatement of the principle expressed in section 1904.5(a), described above. Regardless of where signs or symptoms surface, a case is recordable only if a work event or exposure is a discernable cause of the injury or illness or of a significant aggravation to a pre-existing condition.
  • Section 1904.5(b)(3) states that if it is not obvious whether the precipitating event or exposure occurred in the work environment or elsewhere, the employer Amust evaluate the employee's work duties and environment to decide whether or not one or more events or exposures in the work environment caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.@ This means that the employer must make a determination whether it is more likely than not that work events or exposures were a cause of the injury or illness, or of a sig­nif­icant aggravation to a pre-existing condition. If the employer decides the case is not work-related, and MOSH subsequently issues a citation for failure to record, MOSH would have the burden of proving that the injury or illness was work-related.

D. New Case. Only new cases are recordable. Work-related injuries and illnesses are considered to be new cases when the employee has never reported similar signs or symptoms before, or when the employee has recovered completely from a previ­ous injury or illness and workplace events or exposures have caused the signs or symptoms to reappear.

E. General Recording Criteria. Employers must record new work-related injuries and illnesses that meet one or more of the general recording criteria or meet the recording criteria for specific types of conditions. Recordable work-related injuries and illnesses are those that result in one or more of the following:

  • Death,
  • Days away from work,
  • Restricted work,
  • Transfer to another job,
  • Medical treatment beyond first aid,
  • Loss of consciousness, or
  • Diagnosis of a significant injury or illness.

Employers must classify each case on the 300 Log in accordance with the most serious outcome associated with the case. The outcomes listed on the form are: death, days away, restricted work/transfer, and "other recordable". For cases resulting in days away or in a work restriction or transfer of the employee, the employer must count the number of calendar days involved and enter that total on the form. The employer may stop counting when the total number of days away, restricted or transferred reaches 180.

F. Restricted Work. An employee's work is considered restricted when, as a result of a work-related injury or illness, (A) the employer keeps the employee from performing one or more of the routine func­tions of his or her job (job functions that the employee regularly performs at least once per week), or from working the full workday that he or she would otherwise have been scheduled to work, or (B) a physician or other licensed health care profes­sional recommends that the employee not perform one or more of the routine functions of his or her job, or not work the full workday that he or she would otherwise have been scheduled to worked. The new rule continues the policy established under the old rule ­that a case is not recordable under section 1904.7(b)(4) as a restricted work case if the employee experiences minor muscu­lo­skeletal discomfort, a health care profes­sional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction to that employee for the purpose of preventing a more serious condition from developing.

G. Medical Treatment. Medical treatment means any treatment not contained in the list of first aid treatments. Medical treatment does not include visits to a health­care professional for observation and counseling or diagnostic procedures. First aid means only those treatments specifically listed in 1904.7. Examples of first aid include: the use of non-prescription medications at non-prescription strength, the application of hot or cold therapy, eye patches or finger guards, and others.

H. Diagnosis of a Significant Injury or Illness. A work-related cancer, chronic irreversible ­disease such as silicosis or byssinosis, punctured eardrum, or fractured or cracked bone is a significant injury or illness that must be recorded when diagnosed by a physician or a licensed health care professional.

I. Recording Injuries and Illnesses to Soft Tissues. Work-related injuries and illnesses involving muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs are recordable under the same requirements applicable to any other type of injury or illness. There are no special rules for recording these cases: if the case is work-related and involves medical treatment, days away, job transfer or restricted work, it is recordable.

J. Employee Privacy. The employer must protect the privacy of injured or ill employees when recording cases. In certain types of cases, such as those invol­ving mental illness or sexual assault, the employer may not enter the injured or ill employee's name on the Log. Instead, the employer simply enters "privacy case," and keeps a separate, confidential list containing the identifying information. If the employer provides the OSHA records to anyone who is not entitled to access to the records under the rule, the names of all injured and ill employees generally must be removed before the records are turned over.

K. Certification, Summarization and Posting. After the end of the year, employers must review the Log to verify its accuracy, summarize the 300 Log information on the 300A summary form, and certify the summary (a company executive must sign the certification). This information must then be posted for three months, from February 1 to April 30. The employer must keep the records for five years following the calendar year covered by them, and if the employer sells the busi­ness, he or she must transfer the records to the new owner.

L. Employee Involvement. Each employer must set up a way for employees to report work-related injuries and illnesses, and each employee must be informed about how he or she is to report an injury or illness. Employees, former employees, and employee representatives also have a right to access the records, and an employer must provide copies of certain records upon request.
M. Reporting. The employer must orally report within 8 hours work-related fatalities and incidents involving the hospitalization of three or more employees to the nearest MOSH office, or the MOSH Hotline at 1-888-257-6674. There is an exception for certain motor vehicle or public transportation accidents (See 29 CFR 1904.39). An employer also must participate in an OSHA or BLS injury and illness survey if he or she receives a survey form from OSHA or the BLS.

II. Inspection and Citation Procedures.

A. Review Records and Collect Data. All CSHOs on all inspections must review and record the establishment's injury and illness records for the three prior calendar years.

At the end of this chapter are some tools to assist the compliance officer: Figure 2-1 has a list of Health Care Practitioners' Abbreviations; Figure 2-2 lists Partially Exempt Industries; Figure 2-3 lists Newly Covered Industries; Figure 2-4 lists Newly Partially Exempt Industries; and Figure 2-5 has an Incidence Rate Worksheet.
B. Citations and Penalties for Violation of Part 1904 Requirements. The following incorporates paragraph D.4. in Chapter VI of the Field Operations Manual.

1. OSHA 300 and OSHA 301 Forms. The employer must record cases on the OSHA 300 Log of Work-Related Injuries and Illnesses, and on the OSHA 301 Incident Report, (or equivalent form), as prescribed in Subpart C of '1904. Where no records are kept and there have been injuries or illnesses which meet the requirements for recordability, as determined by other records or by employee interviews, an other-than-serious citation for failure to keep records will normally be issued.

When the required records are kept but no entry is made for a specific injury or illness which meets the requirements for recordability, an other-than-serious citation for failure to record the case will normally be issued.

Where no records are kept and there have been no injuries or illnesses, as deter­mined by employee interviews, a citation will not be issued. See II B.2. regarding OSHA 300A, Annual Summary.

When the required records are kept but have not been completed with the detail required by the regulation, or the records contain minor inaccuracies, the records will be reviewed to determine if there are deficiencies that materially impair the understandability of the nature of hazards, injuries and illnesses in the workplace.

If the defects in the records materially impair the understandability of the nature of the hazards, injuries and/or illnesses at the workplace, an other-than-serious citation will normally be issued.

Incompletely Recorded Cases on the OSHA 300 or 301. If the deficien­cies do not materially impair the understandability of the informa­tion, normally no citation will be issued. For example, an employer should not be cited solely for misclassifying an injury as an illness or vice versa. The employer will be provided information on keeping­ the records for the employer's analysis of workplace injury trends and on the means to keep the records accurately. The employer's promised actions to correct the deficiencies will be recorded and no citation will be issued.

Penalties. When a penalty is appropriate, there will be an unadjusted penalty of $350 for each year the OSHA 300 was not properly kept; an unadjusted penalty of $350 for each OSHA 301 that was not filled out at all (up to a maximum of $7,000); and an unadjusted penalty of $350 for each OSHA 301 that was not accurately completed (up to a maximum of $7,000).

2. Posting Annual Summary Requirements. An other-than-serious citation will normally be issued, if an employer fails to post the OSHA 300A Summary by February as required by '1904.32(a)(1); and/or fails to certify the Summary as required by '1904.32(b)(3); and/or fails to keep it posted for three months, until May 1, as required by '1904.32(b)(6). The unadjusted penalty for this violation will be $350.

A citation will not be issued if the Summary that is not posted or certified reflects no injuries or illnesses, and no injuries or illnesses actually occurred. The CSHO will verify that there were no recordable injuries or illnesses by interviews, or by review of workers' compensation or other records, including medical records.

3. Reporting. In accordance with '1904.39, an employer is required to report to MOSH within 8 hours of the time the employer learns of the death of any employee or the inpatient hospitalization of three or more employees, from a work-related incident. This includes fatalities at work caused by work-related heart attacks. There is an exception for certain work-related motor vehicle accidents or public transportation accidents (See 29 CFR 1904.39).

The employer must orally report the fatality or multiple hospitalization by telephone or in person to the MOSH Regional Office that is nearest to the site of the incident. MOSH's toll-free tele­phone number may be used: 1-888-257-6674.

A serious citation will normally be issued for failure to report such an occurrence. See paragraph D.4.c.(2) in Chapter VI of the Field Operations Manual.

If the Assistant Commissioner or Authorized Representative becomes aware of an incident required to be reported under '1904.39 through some means other than an employer report, prior to the elapse of the 8-hour reporting period and an inspection of the incident is made, a citation for failure to report will normally not be issued.

4. Access to Records for Employees. If the employer fails upon request to provide copies of records required in '1904.29(a) to any employee, former employee, personal representative, or authorized employee representative by the end of the next business day, a citation for violation of '1904.35(b)(2) will normally be issued. The unadjusted penalty will be $350 for each form not made available.

For example: If the OSHA 300 or the OSHA 300A for the current year and the three preceding years is not made available, the unadjusted penalty will be $1,400.

If the employer does not make available the OSHA 301s, the unadjusted penalty will be $350 for each OSHA 301 not provided, up to a maximum of $7,000.

If the employer is to be cited for failure to keep records (OSHA 300, OSHA 300A, or OSHA 301) under '1904.4, no citation for failure to give access under '1904.35(b)(2) will be issued.

C. Enforcement Procedures for Occupational Exposure to Bloodborne Pathogens. Compliance guidance given in paragraph X of OSHA Instruction CPL 2-2.69 is superseded by 29 CFR 1904.8 (Recording Criteria for Needlestick and Sharps Injuries) of the new Recordkeeping rule.

In addition, the term "contaminated" under 29 CFR 1904.8, Recording Criteria for Needlestick and Sharps Injuries, incorporates the definition of "contaminated" from the Bloodborne Pathogens Standard at 29 CFR 1910.1030(b) ("Definitions"). Thus, "contaminated" means the presence or the reasonably anticipated presence of blood or other potentially infectious materials on an item or surface.

Employers may use the OSHA 300 and 301 forms to meet the sharps injury log requirement of '1910.1030(h)(5), if the employer enters the type and brand of the device causing the sharps injury on the Log, and maintains the records in a way that segregates sharps injuries from other types of work-related injuries and illnesses, or allows sharps injuries to be easily separated.

D. Enforcement Procedures for Occupational Exposure to Tuberculosis. Compliance guidance given in paragraph L.5. of OSHA Instruction CPL 2.106 is superseded by 29 CFR 1904.11 (Recording Criteria for Work-Related Tubercu­losis Cases) of the new Recordkeeping rule.

E. Clarification of Recordkeeping Citation Policy in the Construction Industry. Compliance guidance given in paragraph E.6. of OSHA Instruction STD 3-1.1 is super­seded by CFR 1904.30 (Multiple Business Establishments) and 1904.31 (Covered Employees) of the new Recordkeeping rule.

F. Recording Criteria for Cases Involving Medical Removal. Section 1904.9 requires the employer to record the case on the OSHA 300 Log if an employee is medically removed under the medical surveillance requirements of an OSHA standard. Currently the medical surveillance requirements of the following standards have medical removal requirements:

  1.  Benzene. General industry standard ('1910.1028(i)); Shipyard standard ('1915.1028); and Construction standard ('1926.1128)
  2. Cadmium. General industry standard ('1910.1027(l)); Shipyard standard ('1915.1027); and Construction standard ('1926.1127)
  3. Formaldehyde. General industry standard ('1910.1048(l)); Shipyard standard ('1915.1048); and Construction standard ('1926.1148)
  4. Lead. General industry standard ('1910.1025); Shipyard standard ('1915.1025); and Construction standard ('1926.62)
  5. Methylenedianiline. General industry standard ('1910.1050(m)); Shipyard standard ('1915.1050); and Construction standard ('1926.60(n))
  6. Methylene Chloride. General industry standard ('1910.1052(j)); Shipyard standard ('1915.1052); Construction standard ('1926.1152)
  7. Vinyl Chloride. General industry standard ('1910.1017(k)); Shipyard standard ('1915.1517); and Construction standard ('1926.1117)

G. Privacy Concern Cases. The new rule at '1904.29(b)(6) through (10) requires the employer to protect the privacy of the injured or ill employee. The employer must not enter an employee's name on the OSHA 300 Log when recording a privacy case. The employer must keep a separate, confidential list of the case numbers and employee names, and provide it to the government upon request.
If the work-related injury involves any of the following, it is to be treated as a privacy case:

  1. An injury or illness to an intimate body part or the reproductive system;
  2. An injury or illness resulting from a sexual assault;
  3. A mental illness;
  4. HIV infection, Hepatitis, or Tuberculosis;
  5. Needlestick and sharps injuries that are contaminated with another person's blood or other potentially infectious material as defined by '1910.1030; or
  6. Other illnesses, if the employee independently and voluntarily requests that his or her name not be entered on the OSHA 300 Log (This does not apply to injuries. See the definition of "Injury and Illness" in '1904.46.)

Note: This is a complete list.

III. Physician or Other Licensed Health Care Provider's Opinion. In cases where two or more physicians or other licensed health care providers make conflicting or differing recommendations, the employer must make a decision as to which recommendation is the most authoritative (best documented, best reasoned, or most persuasive), and record based on that recommendation.

IV. Employers Exempt and Partially Exempt.

A. Federal Agencies. Except for the United States Postal Service, federal agencies do not have to maintain OSHA injury and illness records under Part 1904. Federal Agencies have separate recordkeeping requirements under 29 CFR Part 1960.

B. OSHA and BLS Surveys. All employers who receive the OSHA annual survey form, or the BLS Survey of Occupational Injuries and Illnesses Form, are required to complete and return the survey forms in accordance with ''1904.41 and 1904.42. This requirement also applies to those establishments under the small establishment exemption and the low hazard industry exemption.

C. Small Employer Exemption. Since 1977 the regulations have exempted employers with ten or fewer employees at all times during the last calendar year from the regular recordkeeping require­ments. The new rule at '1904.1 continues this small employer exemption.

D. Low-Hazard Industry Exemption. Since 1982, OSHA has exempted some low- hazard industries from maintaining injury and illness records on a regular basis. The new rule­ updates the old rule's listing of partially exempted low-hazard industries, which are those Standard Industrial Classification (SIC) code industries within SICs 52-89 that have an average Days Away, Restricted, or Transferred (DART) rate at or below 75% of the national average DART rate. The new rule at '1904.2 continues this low-hazard industry exemption.

See Figure 2-2 at the end of the Chapter for the list of Partially Exempt Industries. Note: In the new rule, the description of some industry groups is abridged in the chart in Appendix A. Industries that are not listed, such as Music Stores in SIC 573, are nevertheless intended to be included in the list. Consult the Standard Industrial Classification Manual 1987 for a complete description of each industry included in each industry group. See also Figure 2-3 for a list of Newly Covered Industries, and Figure 2-4 for a list of Newly Partially Exempted Industries.

V. References to Old Forms and to the LWDI/LWDII. Beginning January 1, 2002, references in any OSHA directive, memorandum, or other publication to the recordkeeping forms will be considered as references to the OSHA 300, 301 and 300A, unless it is clear that the reference is to the forms used before January 1, 2002. Also, all references to the Lost Workday Injury (LWDI) rate or the Lost Workday Injury and Illness (LWDII) rate shall be considered to be a reference to the Days Away, Restricted, or Transferred (DART) rate, unless it is clear that the reference is to the rate in use prior to January 1, 2002.

VI. Prohibition Against Discrimination. Section 1904.36 is informational only and is not a citable provision of the regulation. Any discrimination cases related to this rule are to be handled using the normal process under Section 5-604(c) of the MOSH Act.

VII. Definitions.

A. Days Away, Restricted, or Transferred (DART) Rate: This includes cases involving days away from work, restricted work activity, and transfers to another job and is calculated based on (N/EH) x (200,000) where N is the number of cases involving days away and/or job transfer or restriction, EH is the total number of hours worked by all employees during the calendar year, and 200,000 is the base for 100 full-time equivalent employees. For example:

  • Employees of an establishment (XYZ Company), including temporary and leased workers, worked 645,089 hours at XYZ company. There were 22 injury and illness cases involving days away and/or restricted work activity and/or job transfer from the OSHA 300 Log (total of column H plus column I). The DART rate would be (22/645,089) x (200,000) = 6.8.
  • Note: The DART rate will replace the Lost Workday Injury and Illness (LWDII) rate. See Figure 2-5 at the end of this Chapter for an optional Incidence Rate Worksheet.

B. Establishment: An establishment is a single physical location where business is conducted or where services or industrial operations are performed. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas and sanitary services; and similar operations, the establishment is represented by main or branch offices, terminals, stations, etc. that either supervise such activities or are the base from which personnel carry out these activities.

1. Normally, one business location has only one establishment. Under limited conditions, the employer may consider two or more separate businesses that share a single location to be separate establishments. An employer may divide one location into two or more establishments when:

  • Each of the establishments represents a distinctly separate business;
  • Each business is engaged in a different economic activity;
  • No one industry description in the Standard Industrial Classification Manual (1987) applies to the joint activities of the establishments; and
  • Separate reports are routinely prepared for each establishment on the number of employees, their wages and salaries, sales or receipts, and other business information.
  • For example: If an employer operates a construction company at the same location as a lumber yard, the employer may consider each business to be a separate establishment.

2. An establishment can include more than one physical location, but only under certain conditions. An employer may combine two or more physical locations into a single establishment only when:

  • The employer operates the locations as a single business operation under common management;
  • The locations are all located in close proximity to each other; and
  • The employer keeps one set of business records for the locations, such as records on the number of employees, their wages and salaries, sales or receipts, and other kinds of business information. For example: One manufacturing establishment might include the main plant, a warehouse a few blocks away, and an administrative services building across the street.
  • For employees who telecommute from home, the employee's home is not a business establishment and a separate 300 Log is not required. Employees who telecommute shall be linked to one of the employer's establishments under '1904.30(b)(3).

3. Construction work sites that are:

a. Scheduled to continue for a year or more:

(1) A separate OSHA 300 Log must be maintained for each establishment.

(2) The log may be maintained either

  • At the construction site, or
  • At an established central location provided the employer can:
    -- Transmit information about the injuries and illnesses from the establishment to the central location within seven (7) calendar days of receiving information that a recordable injury or illness has occurred, and
    -- Produce and send records from the central location to the establishment within four business hours when the employer is required to provide to a government representative or by the end of the next business day when providing records to an employee, former employee or employee representative.

b. Scheduled to continue for less than a year:

(1) A Separate OSHA 300 Log need not be maintained for each establishment.

(2) One OSHA 300 Log may be maintained to cover:

  • All such short-term establishments or
  • All such short-term establishments within company divisions or geographic regions.

(3) The Log may be maintained at the establishment or at a central location under the given in 3.a.(2), above.

C. First Aid: As stated in '1904.7(b)(5)(ii), first aid means only the following treatments (any treatment not included in this list is not considered first aid for record­keeping purposes): (a) Using a nonprescription medication at non­pre­scrip­tion strength; (b) Administering tetanus immunizations; (c) Cleaning, flushing or soaking wounds on the surface of the skin; (d) Using wound coverings such as bandages, Band-AidsTM, gauze pads, etc.;or using butterfly bandages or Steri-StripsTM; (e) Using hot or cold therapy; (f) Using any non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc.; (g) Using temporary immobilization devices while trans­porting an accident victim; (h) Drilling of a fingernail or toenail to relieve pressure, or draining fluid from a blister; (i) Using eye patches; (j) Removing foreign bodies from the eye using only irrigation or a cotton swab; (k) Removing splinters or foreign material from areas other than the eye by irrigation, tweezers, cotton swabs or other simple means; (l) Using finger guards; (m) Using massages; or (n) Drinking fluids for relief of heat stress.

D. Injuries and Illnesses: An injury or illness is an abnormal condition or disorder. Injuries include cases such as, but not limited to, a cut, fracture, sprain, or amputation. Illnesses include both acute and chronic illnesses, such as, but not limited to, a skin disease, respiratory disorder, or poisoning. (Note: Injuries and illnesses are recordable only if they are new, work-related cases that meet one or more of the Part 1904 recording criteria.)

Note: The distinction between injury and illness is no longer a factor for deter­mining which cases are recordable.

E. Medical Treatment: Medical treatment means the management and care of a patient to combat disease or disorder. For recordkeeping purposes, it does not include (a) visits to a physician or other licensed health care professional solely for observation or counseling; (b) diagnostic procedures such as x-rays and blood tests, including the administration of prescription medications used solely for diagnostic purposes (e.g., eye drops to dilate pupils); or (c) any treatment contained on the list of first-aid treatments.

F. Other Potentially Infectious Material (OPIM): For purposes of 29 CFR Part 1904, this term has the same meaning as in OSHA's bloodborne pathogens standard at 29 CFR '1910.1030, which defines OPIM as: (1) The following human body fluids: semen, vaginal secretions, cerebro­spinal fluid, synovial fluid, pleural fluid, pericardial fluid, peritoneal fluid, amniotic fluid, saliva in dental procedures, any body fluid that is visibly contaminated with blood, and all body fluids in situations where it is difficult or impossible to differentiate between body fluids; (2) Any unfixed tissue or organ (other than intact skin) from a human (living or dead); and (3) HIV-containing cell or tissue cultures, organ cultures, and HIV- or HBV-containing culture medium or other solutions; and blood, organ, or other tissues from experimental animals infected with HIV or HBV.

G. Physician or Other Licensed Health Care Professional: A physician or other licensed health care professional is an individual whose legally permitted scope of practice (i.e., license registration, or certification) allows him or her to indepen­dently perform, or be delegated the responsibility to perform, the activities described by this regulation

 
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