osha 3245 revised

OSHARecordkeeping

HandbookThe Regulation and Related

Interpretations for Recording and Reporting Occupational

Injuries and Illnesses

www.osha.gov

OSHA 3245-09R 2005

Employers are responsible for providing a safe andhealthful workplace for their employees. OSHAsrole is to assure the safety and health of Americasworkers by setting and enforcing standards; provid-ing training, outreach and education; establishingpartnerships; and encouraging continual improve-ment in workplace safety and health. For moreinformation, visit www.osha.gov.

This handbook provides a general overview of aparticular topic related to OSHA regulation. It doesnot alter or determine compliance responsibilitiesin OSHA standards or the Occupational Safety andHealth Act of 1970. Because interpretations andenforcement policy may change over time, youshould consult current OSHA administrative inter-pretations and decisions by the OccupationalSafety and Health Review Commission and theCourts for additional guidance on OSHA compli-ance requirements.

This publication is in the public domain and maybe reproduced, fully or partially, without permis-sion. Source credit is requested but not required.

This information is available to sensory impairedindividuals upon request. Voice phone: (202) 693-1999; teletypewriter (TTY) number: (877) 889-5627.

OSHARecordkeeping Handbook

The Regulation and Related Interpretations for Recordingand Reporting Occupational Injuries and Illnesses

Occupational Safety and Health AdministrationU.S. Department of Labor

Directorate of Evaluation and AnalysisOffice of Statistical Analysis

OSHA 3245-03R2006

This OSHA Web-based Recordkeeping Handbookis a compendium of existing agency-approvedrecordkeeping materials, including the regulatorytext from the 2001 final rule on Occupational Injuryand Illness Recording and Reporting Requirements(the Recordkeeping rule) and relevant explana-tory excerpts from the preamble to the rule; chap-ter 5 of the agency's Recordkeeping Policies andProcedures Manual; Frequently Asked Questions(FAQs); and OSHA letters of interpretation. ThisWeb-based handbook is intended to be a resourcefor businesses of all sizes, as well as OSHA's com-pliance safety and health officers, complianceassistance specialists, and OSHA State-plans. Theinformation in the handbook is accessible by

means of a user-friendly search engine that relieson simple point-and-click technology. The hand-book is designed to answer recordkeeping ques-tions raised by employers, employees, and mem-bers of the OSHA family who are familiar with thebasic requirements of the rule but wish to obtainadditional information on specific recordkeepingissues. Users will also find the handbook usefulas a research and training tool. The handbook canbe accessed through the link below, which directsusers to the file. Because the handbook is Web-based, it will be possible to update letters of inter-pretation and add FAQs to the file quickly as newquestions about the rule are raised.

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Introduction

O S H A R E C O R D K E E P I N G H A N D B O O K i v

The Occupational Safety and Health Act of 1970 (OSHAct) requires covered employers to prepare andmaintain records of occupational injuries and illness-es. The Occupational Safety and Health Administra-tion (OSHA) in the U.S. Department of Labor is re-sponsible for administering the recordkeeping sys-tem established by the Act. The OSH Act and record-keeping regulations in 29 CFR 1904 and 1952 providespecific recording and reporting requirements whichcomprise the framework for the nationwide occupa-tional safety and health recording system.

Under this system, it is essential that data recordedby employers be uniform and accurate to assure theconsistency and validity of the statistical data whichis used by OSHA for many purposes, includinginspection targeting, performance measurementunder the Government Performance and Results Act(GPRA), standards development, resource allocation,Voluntary Protection Program (VPP) eligibility, and"low-hazard" industry exemptions. The data also aidemployers, employees and compliance officers inanalyzing the safety and health environment at theemployers establishment and is the source ofinformation for the OSHA Data Initiative (ODI) andthe Bureau of Labor Statistics (BLS) Annual Survey.

In January 2001, OSHA issued a final rule revisingthe 1904 and 1952 Occupational Injury and IllnessRecording and Reporting Requirements (Record-keeping) regulations, the first revision since 1978.The goals of the revision were to simplify the sys-tem, clarify ongoing concepts, produce more usefulinformation and better utilize modern technology.The new regulation took effect on January 1, 2002.As part of OSHAs extended outreach efforts, theagency also produced a Recordkeeping Policies andProcedures Manual (CPL 2-0.135, December 30, 2004),which contained, along with other related informa-tion, a variety of Frequently Asked Questions. Inaddition, in 2002, a detailed Injury and IllnessRecordkeeping website was established containinglinks to helpful resources related to Recordkeeping,including training presentations, applicable Federal

Register notices, and OSHAs recordkeeping-relatedLetters of Interpretation. (See www.osha.gov/record-keeping/index.html).

This publication brings together relevant informationfrom the Recordkeeping rule, the policies and proce-dures manual and the website. It is organized by reg-ulatory section and contains the specific final regula-tory language, selected excerpts from the relevantOSHA decision analysis contained in the preamble tothe final rule, along with recordkeeping-relatedFrequently Asked Questions and OSHAs enforce-ment guidance presented in the agencys Letters ofInterpretation. The user will find this informationuseful in understanding the Recordkeeping require-ments and will be able to easily locate a variety ofspecific and necessary information pertaining toeach section of the rule.

The information included here deals only with therequirements of the Occupational Safety and HealthAct of 1970 and Parts 1904 and 1952 of Title 29, Codeof Federal Regulations, for recording and reportingoccupational injuries and illnesses. Some employersmay be subject to additional recordkeeping andreporting requirements not covered in this docu-ment. Many specific OSHA standards and regula-tions have additional requirements for the mainte-nance and retention of records for medical surveil-lance, exposure monitoring, inspections, and otheractivities and incidents relevant to occupational safe-ty and health, and for the reporting of certain infor-mation to employees and to OSHA. For informationon these requirements, which are not covered in thispublication, employers should refer directly to theOSHA standards or regulations, consult OSHAs web-site for additional information (www.osha.gov), orcontact their OSHA regional office or participatingState agency.

For recordkeeping and reporting questions not cov-ered in this publication, employers may contact theirOSHA regional office or the participating Stateagency serving their jurisdiction.

Preface

Recordkeeping HandbookRoadmap vi

Section 1904.0Purpose 1REGULATION 1PREAMBLE DISCUSSION 1FREQUENTLY ASKED QUESTIONS 2LETTERS OF INTERPRETATION 2

Section 1904.1Partial exemption for employerswith 10 or fewer employees 3REGULATION 3PREAMBLE DISCUSSION 3FREQUENTLY ASKED QUESTIONS 4LETTERS OF INTERPRETATION 4

Section 1904.2 Partial exemption for establish-ments in certain industries 5REGULATION 5PREAMBLE DISCUSSION 6FREQUENTLY ASKED QUESTIONS 9LETTERS OF INTERPRETATION 9

Section 1904.3 Keeping records for more than one agency 10REGULATION 10PREAMBLE DISCUSSION 10FREQUENTLY ASKED QUESTIONS 10LETTERS OF INTERPRETATION 10

Section 1904.4 Recording criteria 11REGULATION 11PREAMBLE DISCUSSION 12FREQUENTLY ASKED QUESTIONS 12LETTERS OF INTERPRETATION 12

Section 1904.5 Determination of work-relatedness 13REGULATION 13PREAMBLE DISCUSSION 15FREQUENTLY ASKED QUESTIONS 22LETTERS OF INTERPRETATION 25

Contents

Section 1904.6 Determination of new cases 37REGULATION 37PREAMBLE DISCUSSION 37FREQUENTLY ASKED QUESTIONS 41LETTERS OF INTERPRETATION 42

Section 1904.7General recording criteria 47REGULATION 47PREAMBLE DISCUSSION 51FREQUENTLY ASKED QUESTIONS 78LETTERS OF INTERPRETATION 78

Section 1904.8Recording criteria for needlestick and sharps injuries 75REGULATION 75PREAMBLE DISCUSSION 75FREQUENTLY ASKED QUESTIONS 78LETTERS OF INTERPRETATION 78

Section 1904.9Recording criteria for cases involving medical removal under OSHA standards 79REGULATION 79PREAMBLE DISCUSSION 79FREQUENTLY ASKED QUESTIONS 80LETTERS OF INTERPRETATION 80

Section 1904.10Recording criteria for cases involving occupationalhearing loss 81REGULATION 81PREAMBLE DISCUSSION 82FREQUENTLY ASKED QUESTIONS 92LETTERS OF INTERPRETATION 92

Section 1904.11Recording criteria for work-related tuberculosis cases 96REGULATION 96PREAMBLE DISCUSSION 96FREQUENTLY ASKED QUESTIONS 98LETTERS OF INTERPRETATION 98

vO S H A R E C O R D K E E P I N G H A N D B O O K

O S H A R E C O R D K E E P I N G H A N D B O O K v i

Section 1904.34 Change in business ownership 136REGULATION 136PREAMBLE DISCUSSION 136FREQUENTLY ASKED QUESTIONS 136LETTERS OF INTERPRETATION 136

Section 1904.35 Employee involvement 137REGULATION 137PREAMBLE DISCUSSION 138FREQUENTLY ASKED QUESTIONS 143LETTERS OF INTERPRETATION 144

Section 1904.36 Prohibition against discrimination 147REGULATION 147PREAMBLE DISCUSSION 147FREQUENTLY ASKED QUESTIONS 147LETTERS OF INTERPRETATION 147

Section 1904.37 State recordkeepingregulations 148REGULATION 148PREAMBLE DISCUSSION 148FREQUENTLY ASKED QUESTIONS 149LETTERS OF INTERPRETATION 150

Section 1904.38 Variances from the recordkeeping rule 1151REGULATION 151PREAMBLE DISCUSSION 152FREQUENTLY ASKED QUESTIONS 153LETTERS OF INTERPRETATION 153

Section 1904.39 Reporting fatalities and multiple hospitalization incidents to OSHA 154REGULATION 154PREAMBLE DISCUSSION 155FREQUENTLY ASKED QUESTIONS 157LETTERS OF INTERPRETATION 157

Deletion 1904.12Recording criteria for cases involving work-relatedmusculoskeletal disorders 99

Sections 1904.12 1904.28(Reserved) 100

Section 1904.29 Forms 100REGULATION 100PREAMBLE DISCUSSION 101FREQUENTLY ASKED QUESTIONS 109LETTERS OF INTERPRETATION 110

Section 1904.30 Multiple business establishments 113REGULATION 113PREAMBLE DISCUSSION 113FREQUENTLY ASKED QUESTIONS 115LETTERS OF INTERPRETATION 115

Section 1904.31 Covered employees 116REGULATION 116PREAMBLE DISCUSSION 116FREQUENTLY ASKED QUESTIONS 120LETTERS OF INTERPRETATION 120

Section 1904.32 Annual summary 127REGULATION 127PREAMBLE DISCUSSION 127FREQUENTLY ASKED QUESTIONS 131LETTERS OF INTERPRETATION 132

Section 1904.33 Retention and updating 134REGULATION 134PREAMBLE DISCUSSION 134FREQUENTLY ASKED QUESTIONS 135LETTERS OF INTERPRETATION 135

v i iO S H A R E C O R D K E E P I N G H A N D B O O K

Section 1904.40 Providing records togovernment representatives 158REGULATION 158PREAMBLE DISCUSSION 158FREQUENTLY ASKED QUESTIONS 160LETTERS OF INTERPRETATION 160

Section 1904.41 Annual OSHA injury and illness survey of ten or more employers 161REGULATION 161PREAMBLE DISCUSSION 161FREQUENTLY ASKED QUESTIONS 162LETTERS OF INTERPRETATION 162

Section 1904.42 Requests from the Bureau of Labor Statistics for data 163REGULATION 163PREAMBLE DISCUSSION 163FREQUENTLY ASKED QUESTIONS 164LETTERS OF INTERPRETATION 164

Section 1904.46 Definitions 165REGULATION 165PREAMBLE DISCUSSION 166FREQUENTLY ASKED QUESTIONS 172LETTERS OF INTERPRETATION 172

Section 1952.4 Injury and illness recording and reporting requirements 174REGULATION 174PREAMBLE DISCUSSION 174FREQUENTLY ASKED QUESTIONS 174LETTERS OF INTERPRETATION 174

O S H A R E C O R D K E E P I N G H A N D B O O K v i i i

Recordkeeping Handbook RoadmapThis roadmap will assist readers in locating regulatory language, decision analyses, frequently asked questionsand enforcement guidance letters concerning sections 1904 and 1952 of the OSHA Recordkeeping regulations.

Purpose of Rule:See 1904.0

Exempt Employers:See 1904.1

Exempt Establishments:See 1904.2

Requirements of More Than One Agency:See 1904.3

Which Injuries to Record:See 1904.4

1904.51904.6 1904.7

Which Injuries are Work-related:See 1904.5

When an Injury Represents a New Case:See 1904.6

Needlestick and Sharps Injuries:See 1904.8

Medical Removal Cases:See 1904.9

Hearing Loss Cases:See 1904.10

Tuberculosis Cases:See 1904.11

Musculoskeletal Disorder Cases:See 1904.12

The Recording Forms:See 1904.29

Multiple Business Establishments:See 1904.30

Employee Coverage:See 1904.31

The Annual Summary:See 1904.32

Records Retention and Updating:See 1904.33

Changes in Business Ownership:See 1904.34

Employee Involvement:See 1904.35

Prohibition Against Discrimination:See 1904.36

State Recordkeeping Regulations:See 1904.37

Variances from the Rule:See 1904.38

Fatality/Multiple HospitalizationRequirements:

See 1904.39Providing Records to Government Representatives:

See 1904.40OSHAs Annual Injury/Illness Survey:

See 1904.41Bureau of Labor Statistics Data Requests:

See 1904.42Definitions:

See 1904.46State-Plan State Requirements:

See 1952.4

Section 1904.0 Purpose (66 FR 6122, Jan. 19, 2001)

REGULATION: Section 1904.0Subpart A Purpose (66 FR 6122, Jan. 19, 2001)

Section 1904.0The purpose of this rule (Part 1904) is to require employers to record and report work-related fatalities, injuriesand illnesses.

Note to Section 1904.0: Recording or reporting a work-related injury, illness, or fatality does not mean that theemployer or employee was at fault, that an OSHA rule has been violated, or that the employee is eligible forworkers compensation or other benefits.

PREAMBLE DISCUSSION: Section 1904.0 (66 FR 5933-5935, Jan. 19, 2001)

The following are selected excerpts from the preamble to the Occupational Injury and Illness Recording andReporting Requirements, the Recordkeeping rule (66 FR 5916, 29 CFR Parts 1904 and 1952). These excerptsrepresent some of the key discussions related to the final rule (66 FR 6122, 29 CFR Parts 1904 and 1952).

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Subpart A. PurposeThe Purpose section of the final rule explains whyOSHA is promulgating this rule. The Purpose sectioncontains no regulatory requirements and is intendedmerely to provide information. A Note to this sectioninforms employers and employees that recording acase on the OSHA recordkeeping forms does notindicate either that the employer or the employeewas at fault in the incident or that an OSHA rule hasbeen violated. Recording an injury or illness on theLog also does not, in and of itself, indicate that thecase qualifies for workers compensation or otherbenefits. Although any specific work-related injury orillness may involve some or all of these factors, therecord made of that injury or illness on the OSHArecordkeeping forms only shows three things: (1) thatan injury or illness has occurred; (2) that the employ-er has determined that the case is work-related (usingOSHAs definition of that term); and (3) that the caseis non-minor, i.e., that it meets one or more of theOSHA injury and illness recording criteria.

Many cases that are recorded in the OSHA systemare also compensable under the State workers com-pensation system, but many others are not. However,the two systems have different purposes and scopes.The OSHA recordkeeping system is intended to col-lect, compile and analyze uniform and consistentnationwide data on occupational injuries and illness-es. The workers compensation system, in contrast, isnot designed primarily to generate and collect databut is intended primarily to provide medical coverageand compensation for workers who are killed, injuredor made ill at work, and varies in coverage from oneState to another.

As a result of these differences between the twosystems, recording a case does not mean that the caseis compensable, or vice versa. When an injury or ill-ness occurs to an employee, the employer must inde-pendently analyze the case in light of both the OSHArecording criteria and the requirements of the Stateworkers compensation system to determine whetherthe case is recordable or compensable, or both.

1O S H A R E C O R D K E E P I N G H A N D B O O K

FREQUENTLY ASKED QUESTIONS: Section 1904.0 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.0 Purpose

Question 0-1. Why are employers required to keeprecords of work-related injuries and illnesses?

The OSH Act of 1970 requires the Secretary of Laborto produce regulations that require employers to

keep records of occupational deaths, injuries, and ill-nesses. The records are used for several purposes.

Injury and illness statistics are used by OSHA.OSHA collects data through the OSHA Data Initiative(ODI) to help direct its programs and measure its

O S H A R E C O R D K E E P I N G H A N D B O O K

LETTERS OF INTERPRETATION: Section 1904.0 Section 1904.0 PurposeThis section will be developed as letters of interpretation become available.

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own performance. Inspectors also use the data dur-ing inspections to help direct their efforts to the haz-ards that are hurting workers.

The records are also used by employers andemployees to implement safety and health programsat individual workplaces. Analysis of the data is awidely recognized method for discovering workplacesafety and health problems and for tracking progressin solving those problems.

The records provide the base data for the BLSAnnual Survey of Occupational Injuries and Illnesses,the Nations primary source of occupational injuryand illness data.

Question 0-2. What is the effect of workers compen-sation reports on the OSHA records?

The purpose section of the rule includes a note tomake it clear that recording an injury or illness nei-ther affects a persons entitlement to workers com-pensation nor proves a violation of an OSHA rule.The rules for compensability under workers com-pensation differ from state to state and do not haveany effect on whether or not a case needs to berecorded on the OSHA 300 Log. Many cases will beOSHA recordable and compensable under workerscompensation. However, some cases will be com-pensable but not OSHA recordable, and some caseswill be OSHA recordable but not compensable underworkers compensation.

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Section 1904.1 Partial exemption for employers with 10 or fewer employees (66 FR 6122, Jan. 19, 2001)

REGULATION: Section 1904.1Subpart B Scope (66 FR 6122, Jan. 19, 2001)

Note to Subpart B: All employers covered by the Occupational Safety and Health Act (OSH Act) are coveredby these Part 1904 regulations. However, most employers do not have to keep OSHA injury and illnessrecords unless OSHA or the Bureau of Labor Statistics (BLS) informs them in writing that they must keeprecords. For example, employers with 10 or fewer employees and business establishments in certain indus-try classifications are partially exempt from keeping OSHA injury and illness records.

Section 1904.1 Partial exemption for employers with 10 or fewer employees(a) Basic requirement.

(1) If your company had ten (10) or fewer employeesat all times during the last calendar year, you do notneed to keep OSHA injury and illness records unlessOSHA or the BLS informs you in writing that you mustkeep records under Section 1904.41 or Section 1904.42.However, as required by Section 1904.39, all employerscovered by the OSH Act must report to OSHA any work-place incident that results in a fatality or the hospitaliza-tion of three or more employees.

(2) If your company had more than ten (10)employees at any time during the last calendar year,you must keep OSHA injury and illness recordsunless your establishment is classified as a partially

exempt industry under Section 1904.2.

(b) Implementation.(1) Is the partial exemption for size based on the

size of my entire company or on the size of an indi-vidual business establishment?

The partial exemption for size is based on thenumber of employees in the entire company.

(2) How do I determine the size of my company tofind out if I qualify for the partial exemption for size?

To determine if you are exempt because of size,you need to determine your companys peak employ-ment during the last calendar year. If you had nomore than 10 employees at any time in the last calen-dar year, your company qualifies for the partialexemption for size.



Section 1904.1 Partial exemption for employers with 10 or fewer employees

The Size-Based Exemption in the Former RuleThe original OSHA injury and illness recording andreporting rule issued in July 1971 required allemployers covered by the OSH Act to maintain injuryand illness records. In October 1972, an exemptionfrom most of the recordkeeping requirements wasput in place for employers with seven or feweremployees. In 1977, OSHA amended the rule toexempt employers with 10 or fewer employees, andthat exemption has continued in effect to this day.

The Size-Based Exemption in the Final RuleUnder the final rule (and the former rule), anemployer in any industry who employed no morethan 10 employees at any time during the precedingcalendar year is not required to maintain OSHArecords of occupational illnesses and injuries duringthe current year unless requested to do so in writingby OSHA (under Section 1904.41) or the BLS (underSection 1904.42). If an employer employed 11 ormore people at a given time during the year, how-ever, that employer is not eligible for the size-basedpartial exemption.


... [U]nder the 10 or fewer employee partialexemption threshold, more than 80% of employers inOSHAs jurisdiction are exempted from routinelykeeping records.

[T]he final rule clarifies that the 10 or fewer sizeexemption is applicable only if the employer hadfewer than 11 employees at all times during the pre-vious calendar year. Thus, if an employer employs 11 or more people at any given time during that year,the employer is not eligible for the small employerexemption in the following year. This total includesall workers employed by the business. All individualswho are employees under the OSH Act are countedin the total; the count includes all full time, part time,temporary, and seasonal employees. For businessesthat are sole proprietorships or partnerships, theowners and partners would not be consideredemployees and would not be counted. Similarly, forfamily farms, family members are not counted as

employees. However, in a corporation, corporate offi-cers who receive payment for their services are con-sidered employees. [See Section 1904.31, CoveredEmployees.]

Consistent with the former rule, the final ruleapplies the size exemption based on the total num-ber of employees in the firm, rather than the numberof employees at any particular location or establish-ment...because the resources available in a givenbusiness depend on the size of the firm as a whole,not on the size of individual establishments ownedby the firm. In addition, the analysis of injury recordsshould be of value to the firm as a whole, regardlessof the size of individual establishments. Further, anexemption based on individual establishments wouldbe difficult to administer, especially in cases wherean individual employee, such as a maintenanceworker, regularly reports to work at several establish-ments.

FREQUENTLY ASKED QUESTIONS: Section 1904.1 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.1 Partial exemption for employers with 10 or fewer employeesThis section will be developed as questions and answers become available.

LETTERS OF INTERPRETATION: Section 1904.1 Section 1904.1 Partial exemption for employers with 10 or fewer employeesThis section will be developed as letters of interpretation become available.


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Section 1904.2 Partial exemption for establishments in certain industries (66 FR 6122, Jan. 19, 2001)


Section 1904.2 Partial exemption for establishmentsin certain industries (a) Basic requirement.

(1) If your business establishment is classified in aspecific low hazard retail, service, finance, insuranceor real estate industry listed in Appendix A to thisSubpart B, you do not need to keep OSHA injury andillness records unless the government asks you tokeep the records under Section 1904.41 or Section1904.42. However, all employers must report toOSHA any workplace incident that results in a fatalityor the hospitalization of three or more employees(see Section 1904.39).

(2) If one or more of your companys establish-ments are classified in a non-exempt industry, youmust keep OSHA injury and illness records for all ofsuch establishments unless your company is partiallyexempted because of size under Section 1904.1.

(b) Implementation.(1) Does the partial industry classification exemp-

tion apply only to business establishments in theretail, services, finance, insurance or real estateindustries (SICs 52-89)?

Yes, business establishments classified in agricul-ture; mining; construction; manufacturing; trans-portation; communication; electric, gas and sanitaryservices; or wholesale trade are not eligible for thepartial industry classification exemption.

(2) Is the partial industry classification exemptionbased on the industry classification of my entire com-

pany or on the classification of individual businessestablishments operated by my company?

The partial industry classification exemptionapplies to individual business establishments. If acompany has several business establishmentsengaged in different classes of business activities,some of the companys establishments may berequired to keep records, while others may be exempt.

(3) How do I determine the Standard IndustrialClassification code for my company or for individualestablishments?

You determine your Standard IndustrialClassification (SIC) code by using the StandardIndustrial Classification Manual, Executive Office ofthe President, Office of Management and Budget.You may contact your nearest OSHA office or Stateagency for help in determining your SIC.

Non-Mandatory Appendix A to Subpart B Partially Exempt Industries

Employers are not required to keep OSHA injuryand illness records for any establishment classified inthe following Standard Industrial Classification (SIC)codes, unless they are asked in writing to do so byOSHA, the Bureau of Labor Statistics (BLS), or a stateagency operating under the authority of OSHA or theBLS. All employers, including those partially exempt-ed by reason of company size or industry classifica-tion, must report to OSHA any workplace incidentthat results in a fatality or the hospitalization of threeor more employees (see Section 1904.39).

SIC code Industry description525 Hardware Stores542 Meat and Fish Markets544 Candy, Nut, and Confectionery Stores545 Dairy Products Stores546 Retail Bakeries549 Miscellaneous Food Stores551 New and Used Car Dealers552 Used Car Dealers554 Gasoline Service Stations557 Motorcycle Dealers56 Apparel and Accessory Stores

SIC code Industry description573 Radio, Television, & Computer Stores58 Eating and Drinking Places591 Drug Stores and Proprietary Stores592 Liquor Stores594 Miscellaneous Shopping Goods Stores599 Retail Stores, Not Elsewhere Classified60 Depository Institutions (banks & savings

institutions)61 Nondepository Institutions62 Security and Commodity Brokers63 Insurance Carriers

Appendix A -- Partially Exempt Industries


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SIC code Industry description64 Insurance Agents, Brokers, & Services653 Real Estate Agents and Managers654 Title Abstract Offices67 Holding and Other Investment Offices722 Photographic Studios, Portrait723 Beauty Shops724 Barber Shops725 Shoe Repair and Shoeshine Parlors726 Funeral Services and Crematories729 Miscellaneous Personal Services731 Advertising Services732 Credit Reporting and Collection Services733 Mailing, Reproduction, & Stenographic

Services737 Computer and Data Processing Services738 Miscellaneous Business Services764 Reupholstery and Furniture Repair78 Motion Picture791 Dance Studios, Schools, and Halls792 Producers, Orchestras, Entertainers

SIC code Industry description793 Bowling Centers801 Offices & Clinics Of Doctors Of Medicine802 Offices and Clinics Of Dentists803 Offices & Clinics Of Doctors Of Osteopathy804 Offices & Clinics Of Other Health Practitioners807 Medical and Dental Laboratories809 Health and Allied Services, Not Elsewhere

Classified81 Legal Services82 Educational Services (schools, colleges,

universities and libraries)832 Individual and Family Services835 Child Day Care Services839 Social Services, Not Elsewhere Classified841 Museums and Art Galleries86 Membership Organizations87 Engineering, Accounting, Research,

Management, and Related Services899 Services, not elsewhere classified



Section 1904.2 Partial exemption for establishmentsin certain industriesSection 1904.2 of the final rule partially exemptsemployers with establishments classified in certainlower-hazard industries. Lower-hazard industriesare those Standard Industrial Classification (SIC)code industries within SICs 52-89 that have anaverage Days Away, Restricted, or Transferred(DART) rate at or below 75% of the national aver-age DART rate.

You determine your Standard IndustrialClassification (SIC) code by using the StandardIndustrial Classification Manual, Executive Office ofthe President, Office of Management and Budget.You may contact your nearest OSHA office or Stateagency for help in determining your SIC.

Employers with establishments in those industrysectors shown in Appendix A are not required rou-tinely to keep OSHA records for their establishments.They must, however, keep records if requested todo so by the Bureau of Labor Statistics in connec-tion with its Annual Survey (section 1904.42) or byOSHA in connection with its Data Initiative (section1904.41). In addition, all employers covered by the

OSH Act must report a work-related fatality, or anaccident that results in the hospitalization of threeor more employees, to OSHA within 8 hours (sec-tion 1904.39).

In 1982, OSHA exempted establishments in anumber of service, finance and retail industriesfrom the duty to regularly maintain the OSHA Logand Incident Report (47 FR 57699 (Dec. 28, 1982)).This industry exemption to the Part 1904 rule wasintended to reduce paperwork burden on employ-ers without compromising worker safety andhealth.

Although the 1982 Federal Register notice dis-cussed the possibility of revising the exempt indus-try list on a routine basis, the list of partiallyexempt industries compiled in 1982 has remainedunchanged until this revision of the Part 1904rule.

...[N]on-mandatory Appendix A of the final ruleidentifies industries for exemption at the 3-digit SICcode level. Although this approach does make thelist of exempt industries longer and more detailed,it also targets the exemption more effectively thandid the former rules list. For example, the final rule

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does not exempt firms in many of the more haz-ardous 3-digit SIC industries that are embeddedwithin lower rate 2-digit SIC industries. It does,however, exempt firms in relatively low-hazard 3-digit SIC industries, even though they are classifiedin higher hazard 2-digit SIC industries. Where DaysAway, Restricted, or Transferred (DART, formerlyLWDI) rate calculations exempt all of the 3-digit SICindustries within a given 2-digit industry, theexempt industry list in Appendix A displays onlythe 2-digit SIC classification. This approach merelyprovides a shorter, simpler list.

For multi-establishment firms, the industryexemption is based on the SIC code of each estab-lishment, rather than the industrial classification ofa firm as a whole. For example, some larger corpo-rations have establishments that engage in differ-ent business activities. Where this is the case, eachestablishment could fall into a different SIC code,based on its business activity. The StandardIndustrial Classification manual states that theestablishment, rather than the firm, is the appropri-ate unit for determining the SIC code. Thus,depending on the SIC code of the establishment,one establishment of a firm may be exempt fromroutine recordkeeping under Part 1904, whileanother establishment in the same company maynot be exempt.

OSHA has evaluated other approaches but hasdecided that the 3-digit DART rate method is bothsimpler and more equitable than the former 2-digitmethod. By exempting lower-hazard industry sec-tors within SICs 52-89, OSHA hopes both to con-centrate its recordkeeping requirements in sectorsthat will provide the most useful data and to mini-mize paperwork burden. No exemption method isperfect: any method that exempts broad classes ofemployers from recordkeeping obligations willexempt some more hazardous workplaces andcover some less hazardous workplaces. OSHA hasattempted to minimize both of these problems byusing the most current injury and illness statisticsavailable, and by applying them to a more detailedindustry level within the retail, financial and servicesectors than was formerly the case. OSHA has alsolimited the scope of the exemptions by using anexemption threshold that is well below the nationalaverage, including only those industries that haveaverage DART rates that are at or below 75% of thenational average DART rate. The rule also limits theexempt industries to the retail, financial and service

sectors, which are generally less hazardous thanthe manufacturing industry sector.

The final rule makes clear that, when a leasedor temporary employee is supervised on a day-to-day basis by the using firm, the using firm mustenter that employees injuries and illnesses on theusing firms establishment Log and other records.Injuries and illnesses occurring to a given employ-ee should only be recorded once, either by the tem-porary staffing firm or the using firm, depending onwhich firm actually supervises the temporaryemployees on a day-to-day basis. (see the discus-sion for Section 1904.31, Covered employees, foran in-depth explanation of these requirements.)

After a review of the recent BLS data, OSHAsown experience, and the record of this rulemaking,OSHA has decided that it is appropriate to requirefirms in industries within the SIC 01 through 51codes to comply with OSHAs requirements to keeprecords. Thus, the final rule, like the proposed ruleand the rule published in 1982, does not exemptfirms with more than 10 employees in the industrydivisions of agriculture, mining, construction, man-ufacturing, wholesale trade, transportation andpublic utilities (SICs 01-52) from routine record-keeping.

Although OSHA no longer restricts its inspectiontargeting schemes to employers in these SICs,these industries have traditionally been, and con-tinue to be, the focus of many of the Agencysenforcement programs. OSHA believes that it isimportant for larger employers (i.e., those withmore than 10 employees) in these industries tocontinue to collect and maintain injury and illnessrecords for use by the employer, employees andthe government. As noted in the comments there isa wide variation in injury/illness rates among estab-lishments classified in these industries. Further, asa whole, these industries continue to have injuryand illness rates that are generally higher than theprivate sector average and will thus benefit fromthe information that OSHA-mandated records canprovide about safety and health conditions in theworkplace. In 1998, the lost workday injury and ill-ness rate for the entire private sector was 3.1. Ascan be seen in the following table of lost workdayinjury and illness rates by industry division, all ofthe covered divisions exceeded 75% of the nationalaverage LWDI rate (2.325) for the private sector as awhole, while the exempted industry divisions hadsubstantially lower rates.


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8

Industry Sector 1998 Lost WorkdayInjury and Illness Rate

Agriculture, forestry and fishing (SIC 01) 3.9Mining (SIC 10-14) 2.9Construction (SIC 15-17) 4.0Manufacturing (SIC 20-39) 4.7Transportation, communications, electric, gas and sanitary services (SIC 40-49) 4.3Wholesale trade (SIC 50 & 51) 3.3Retail trade (SIC 52-59) 2.7Finance, Insurance & Real Estate (SIC 60-67) 0.7Services (SIC 70-87) 2.4

(U.S. Department of Labor Press Release USDL 98-494, December 16, 1999)

The Agency finds that continuing, and improv-ing on, the Agencys longstanding approach of par-tially exempting those industries in SIC codes 52-89that have DART rates, based on 3 years of BLS data,below 75% of the private-sector average strikes theappropriate balance between the need for injury andillness information on the one hand, and the paper-work burdens created by recording obligations, onthe other. The BLS Annual Survey will, of course,continue to provide national job-related statistics forall industries and all sizes of businesses. As it hasdone in the past, the BLS will sample employers inthe partially exempt industries and ask each sampledemployer to keep OSHA records for one year. In thefollowing year, BLS will collect the records to gener-ate estimates of occupational injury and illness forfirms in the partially exempt industries and size class-es, and combine those data with data for other indus-tries to generate estimates for the entire U.S. privatesector. These procedures ensure the integrity of thenational statistics on occupational safety and health.

The list of partially exempted industry sectors inthis rule is based on the current (1987) revision of theSIC manual. The Office of Management and Budget(OMB) is charged with maintaining and revising thesystem of industrial classification that will replace theSIC. The new system is used by U.S. statistical agen-cies (including the BLS). Under the direction of OMB,the U.S. government has adopted a new, compre-hensive system of industrial classification that willreplace the SIC. The new system is called the NorthAmerican Industrial Classification System (NAICS).NAICS will harmonize the U.S. classification systemwith those of Canada and Mexico and make it easierto compare various economic and labor statisticsamong the three countries.

Although the NAIC industry classification systemhas been formally adopted by the United States, theindividual U.S. statistical agencies (including the BLS)are still converting their statistical systems to reflectthe new codes and have not begun to publish statis-tics using the new industry classifications. The newsystem will be phased into the nations various statis-tical systems over the next several years. The BLSdoes not expect to publish the first occupationalinjury and illness rates under the new system untilthe reference year 2003. Given the lag time betweenthe end of the year and the publication of the statis-tics, data for a full three-year period will not be avail-able before December of 2006.

Because data to revise the Part 1904 industryexemption based on the NAIC system will not beavailable for another five years, OSHA has decided toupdate the industry exemption list now based on themost recent SIC-based information available fromBLS for the years 1996, 1997 and 1998. OSHA willconduct a future rulemaking to update the industryclassifications to the NAIC system when BLS publish-es injury and illness data that can be used to makeappropriate industry-by-industry decisions.

OSHA agrees with those commenters whofavored regular updating of the SIC code exemptionlist. For the list to focus Agency resources most effec-tively on the most hazardous industries, it must beup-to-date. Industries that are successful in loweringtheir rates to levels below the exemption thresholdshould be exempted, while those whose rates risesufficiently to exceed the criterion should receiveadditional attention. Unfortunately, the change inindustry coding systems from the Standard IndustrialClassification (SIC) system to the North AmericanIndustry Classification (NAIC) system will require afuture rulemaking to shift to that system. Therefore,there is no value in adding an updating mechanismat this time. The automatic updating issue will beaddressed in the same future rulemaking thataddresses the NAIC system conversion.

Partial Exemptions for Employers Under theJurisdiction of OSHA-Approved State OccupationalSafety and Health Plans

For those States with OSHA-approved State plans,the state is generally required to adopt Federal OSHArules, or a State rule that is at least as effective as theFederal OSHA rule. States with approved plans donot need to exempt employers from recordkeeping,either by employer size or by industry classification,as the final Federal OSHA rule does, although they

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may choose to do so. For example, States withapproved plans may require records from a wideruniverse of employers than Federal OSHA does.These States cannot exempt more industries or

employers than Federal OSHA does, however,because doing so would result in a State rule that isnot as effective as the Federal rule.

FREQUENTLY ASKED QUESTIONS: Section 1904.2 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.2 Partial exemption for establishments in certain industries

LETTERS OF INTERPRETATION: Section 1904.2 Section 1904.2 Partial exemption for establishments in certain industriesThis section will be developed as letters of interpretation become available.

Question 2-1. How can I get help to find my SIC Codeand determine if Im partially exempt from therecordkeeping rule?

You can access the statistics section of OSHAs inter-net home page, at http://www.osha.gov/oshstats/. Goto the website and choose SIC Manual and follow thedirections. If you still cannot determine your SICcode, you can call an OSHA area office, or, if you arein a state with an OSHA-approved state plan, callyour State Plan office. See the OSHA Office Directory.

Question 2-2. Do States with OSHA-approved Stateplans have the same industry exemptions as FederalOSHA?

States with OSHA-approved plans may requireemployers to keep records for the State, even thoughthose employers are within an industry exempted bythe Federal rule.

Question 2-3. Do professional sports teams qualifyfor the partial industry exemption in section 1904.2?

No. Only those industry classifications listed inAppendix A to Subpart B qualify for the partial indus-try exemption in section 1904.2. Professional sportsteams are classified under Standard IndustrialClassification (SIC) code 794, which is not one of thelisted exempt classifications.


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Section 1904.3 Keeping records for more than one agency(66 FR 6123, Jan. 19, 2001)


Section 1904.3 Keeping records for more than one agencyIf you create records to comply with another govern-ment agencys injury and illness recordkeepingrequirements, OSHA will consider those records asmeeting OSHAs Part 1904 recordkeeping require-ments if OSHA accepts the other agencys records

under a memorandum of understanding with thatagency, or if the other agencys records contain thesame information as this Part 1904 requires you torecord. You may contact your nearest OSHA office orState agency for help in determining whether yourrecords meet OSHAs requirements.

PREAMBLE DISCUSSION: Section 1904.3 (66 FR 5945, Jan. 19, 2001)


Section 1904.3 Recordkeeping under the require-ments of other Federal agenciesSection 1904.3 of the final rule provides guidance foremployers who are subject to the occupational injuryand illness recording and reporting requirements ofother Federal agencies. Several other Federal agen-cies have similar requirements, such as the MineSafety and Health Administration (MSHA), theDepartment of Energy (DOE), and the FederalRailroad Administration (FRA). The final rule at sec-

tion 1904.3 tells the employer that OSHA will acceptthese records in place of the employers Part 1904records under two circumstances: (1) if OSHA hasentered into a memorandum of understanding(MOU) with that agency that specifically accepts theother agencys records, the employer may use themin place of the OSHA records, or (2) if the otheragencys records include the same informationrequired by Part 1904, OSHA would consider them an acceptable substitute.

FREQUENTLY ASKED QUESTIONS: Section 1904.3 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.3 Keeping records for more than one agencyThis section will be developed as questions and answers become available.

LETTERS OF INTERPRETATION: Section 1904.3 Section 1904.3 Keeping records for more than one agencyThis section will be developed as letters of interpretation become available.

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1 1O S H A R E C O R D K E E P I N G H A N D B O O K

Section 1904.4 Recording criteria (66 FR 6123, Jan. 19, 2001)

REGULATION: Section 1904.4Subpart C Recordkeeping Forms and Recording Criteria (66 FR 6123, Jan. 19, 2001)

Note to Subpart C: This Subpart describes the work-related injuries and illnesses that an employer mustenter into the OSHA records and explains the OSHA forms that employers must use to record work-relatedfatalities, injuries, and illnesses.

Section 1904.4 Recording criteria(a) Basic requirement.

Each employer required by this Part to keeprecords of fatalities, injuries, and illnesses mustrecord each fatality, injury and illness that:

(1) Is work-related; and (2) Is a new case; and(3) Meets one or more of the general recording

criteria of Section 1904.7 or the application to specificcases of Section 1904.8 through Section 1904.11.(b) Implementation.

(1) What sections of this rule describe recording cri-teria for recording work-related injuries and illnesses?

The table below indicates which sections of therule address each topic.

(i) Determination of work-relatedness. See Section1904.5.(ii) Determination of a new case. See Section1904.6.(iii) General recording criteria. See Section 1904.7.(iv) Additional criteria. (Needlestick and sharpsinjury cases, tuberculosis cases, hearing losscases, medical removal cases, and musculoskele-tal disorder cases). See Section 1904.8 throughSection 1904.11.(2) How do I decide whether a particular injury or

illness is recordable?The decision tree for recording work-related

injuries and illnesses below shows the steps involvedin making this determination.

Did the employee experience an injury or illness?

Is the injury or illness work-related?

Is the injury or illness a new case?Update the previously

recorded injury or illness entry if necessary.

Does the injury or illness meet the general recording criteria or the

application to specific cases?

Record the injury or illness.Do not record the injury or illness.

NO

NO

NO YES

NO

YES

YES

YES


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Section 1904.4 Recording CriteriaSection 1904.4 of the final rule contains provisionsmandating the recording of work-related injuries andillnesses that must be entered on the OSHA 300(Log) and 301 (Incident Report) forms. It sets out therecording requirements that employers are requiredto follow in recording cases.

Paragraph 1904.4(a) of the final rule mandates thateach employer who is required by OSHA to keeprecords must record each fatality, injury or illnessthat is work-related, is a new case and not a continu-ation of an old case, and meets one or more of thegeneral recording criteria in section 1904.7 or theadditional criteria for specific cases found in sections1904.8 through 1904.11. Paragraph (b) contains provi-sions implementing this basic requirement.

Paragraph 1904.4(b)(1) contains a table that pointsemployers and their recordkeepers to the varioussections of the rule that determine which work-relat-ed injuries and illnesses are to be recorded. These

sections lay out the requirements for determiningwhether an injury or illness is work-related, if it is anew case, and if it meets one or more of the generalrecording criteria. In addition, the table contains arow addressing the application of these and addition-al criteria to specific kinds of cases (needlestick andsharps injury cases, tuberculosis cases, hearing losscases, medical removal cases, and musculoskeletaldisorder cases). The table in paragraph 1904.4(b)(1) isintended to guide employers through the recordingprocess and to act as a table of contents to the sec-tions of Subpart C.

Paragraph (b)(2) is a decision tree, or flowchart,that shows the steps involved in determiningwhether or not a particular injury or illness case mustbe recorded on the OSHA forms. It essentiallyreflects the same information as is in the table inparagraph 1904.4(b)(1), except that it presents thisinformation graphically.

FREQUENTLY ASKED QUESTIONS: Section 1904.4 (OSHA Instruction, CPL 2-0.135, Chap. 5)Section 1904.4 Recording criteria

Question 4-1. Does an employee report of an injuryor illness establish the existence of the injury or ill-ness for recordkeeping purposes?

No. In determining whether a case is recordable, theemployer must first decide whether an injury or ill-ness, as defined by the rule, has occurred. If theemployer is uncertain about whether an injury or ill-ness has occurred, the employer may refer the

employee to a physician or other health care profes-sional for evaluation and may consider the healthcare professionals opinion in determining whetheran injury or illness exists. [Note: If a physician orother licensed health care professional diagnoses asignificant injury or illness within the meaning ofSection1904.7(b)(7) and the employer determines thatthe case is work-related, the case must be recorded.]

LETTERS OF INTERPRETATION: Section 1904.4 Section 1904.4 Recording criteriaThis section will be developed as letters of interpretation become available.

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Section 1904.5 Determination of work-relatedness (66 FR 6123, Jan. 19, 2001)

REGULATION: Section 1904.5Subpart C Recordkeeping Forms and Recording Criteria (66 FR 6123, Jan. 19, 2001)

Note to Subpart C: This Subpart describes the work-related injuries and illnesses that an employer mustenter into the OSHA records and explains the OSHA forms that employers must use to record work-relatedfatalities, injuries, and illnesses.

Section 1904.5 Determination of work-relatedness(a) Basic requirement.

You must consider an injury or illness to be work-related if an event or exposure in the work environmenteither caused or contributed to the resulting conditionor significantly aggravated a pre-existing injury or ill-ness. Work-relatedness is presumed for injuries and ill-nesses resulting from events or exposures occurring inthe work environment, unless an exception in Section1904.5(b)(2) specifically applies.(b) Implementation.

(1) What is the work environment? OSHA defines the work environment as the estab-

lishment and other locations where one or moreemployees are working or are present as a conditionof their employment. The work environment includesnot only physical locations, but also the equipmentor materials used by the employee during the courseof his or her work.

(2) Are there situations where an injury or illnessoccurs in the work environment and is not consid-ered work-related?

Yes, an injury or illness occurring in the work envi-ronment that falls under one of the following excep-tions is not work-related, and therefore is not record-able.

1904.5(b)(2) You are not required to record injuries and illnesses if ...

(i) At the time of the injury or illness, the employee was present in the work environment as a member of the general public rather than as an employee.

(ii) The injury or illness involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment.

(iii) The injury or illness results solely from voluntary participation in a wellness program or in a medical, fitness, or recreational activity such as blood donation, physical examination, flu shot, exercise class, racquetball, or baseball.

(iv) The injury or illness is solely the result of an employee eating, drinking, or preparing food or drink for personal consumption (whether bought on the employers premises or brought in). For example, if the employee is injured by choking on a sandwich while in the employers establishment, the case would not be considered work-related.

Note: If the employee is made ill by ingesting food contaminated by workplace contaminants (such as lead), or gets food poisoning from food supplied by the employer, the case would be considered work-related.

(v) The injury or illness is solely the result of an employee doing personal tasks (unrelated to their employment) at the establishment outside of the employees assigned working hours.

(vi) The injury or illness is solely the result of personal grooming, self medication for a non-work-related condition, or is intentionally self-inflicted.

(vii) The injury or illness is caused by a motor vehicle accident and occurs on a company parking lot or company access road while the employee is commuting to or from work.


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(viii) The illness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucellosis, hepatitis A, or plague are considered work-related if the employee is infected at work).

(ix) The illness is a mental illness. Mental illness will not be considered work-related unless the employee voluntarily provides the employer with an opinion from a physician or other licensed health care professional with appropriate training and experience (psychiatrist, psychologist, psychiatric nurse practitioner, etc.) stating that the employee has a mental illness that is work-related.

(3) How do I handle a case if it is not obviouswhether the precipitating event or exposure occurredin the work environment or occurred away from work?

In these situations, you must evaluate the employ-ees work duties and environment to decide whetheror not one or more events or exposures in the workenvironment either caused or contributed to theresulting condition or significantly aggravated a pre-existing condition.

(4) How do I know if an event or exposure in thework environment significantly aggravated a pre-existing injury or illness?

A preexisting injury or illness has been significant-ly aggravated, for purposes of OSHA injury and ill-ness recordkeeping, when an event or exposure inthe work environment results in any of the following:

(i) Death, provided that the preexisting injury orillness would likely not have resulted in death butfor the occupational event or exposure.(ii) Loss of consciousness, provided that the pre-existing injury or illness would likely not haveresulted in loss of consciousness but for the occu-pational event or exposure.(iii) One or more days away from work, or days ofrestricted work, or days of job transfer that other-wise would not have occurred but for the occupa-tional event or exposure.

(iv) Medical treatment in a case where no medicaltreatment was needed for the injury or illnessbefore the workplace event or exposure, or achange in medical treatment was necessitated bythe workplace event or exposure.(5) Which injuries and illnesses are considered

pre-existing conditions?An injury or illness is a preexisting condition if it

resulted solely from a non-work-related event orexposure that occurred outside the work environ-ment.

(6) How do I decide whether an injury or illness iswork-related if the employee is on travel status at thetime the injury or illness occurs?

Injuries and illnesses that occur while an employ-ee is on travel status are work-related if, at the timeof the injury or illness, the employee was engaged inwork activities in the interest of the employer.Examples of such activities include travel to and fromcustomer contacts, conducting job tasks, and enter-taining or being entertained to transact, discuss, orpromote business (work-related entertainmentincludes only entertainment activities being engagedin at the direction of the employer).

Injuries or illnesses that occur when the employeeis on travel status do not have to be recorded if theymeet one of the exceptions listed below.

1904.5(b)(6) If the employee has... You may use the following to determine if an injury or illness is work-related

(i) checked into a hotel When a traveling employee checks into a hotel, motel, or into another tem-or motel for one or porary residence, he or she establishes a home away from home. You must more days. evaluate the employees activities after he or she checks into the hotel, motel,

or other temporary residence for their work-relatedness in the same manner as you evaluate the activities of a non-traveling employee. When the employeechecks into the temporary residence, he or she is considered to have left the work environment. When the employee begins work each day, he or she re-enters the work environment. If the employee has established a home away from home and is reporting to a fixed worksite each day, you also do not consider injuries or illnesses work-related if they occur while the employeeis commuting between the temporary residence and the job location.

( ii) taken a detour for Injuries or illnesses are not considered work-related if they occur while the personal reasons. employee is on a personal detour from a reasonably direct route of travel

(e.g., has taken a side trip for personal reasons).

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(b)(7) How do I decide if a case is work-relatedwhen the employee is working at home?

Injuries and illnesses that occur while an employ-ee is working at home, including work in a homeoffice, will be considered work-related if the injury orillness occurs while the employee is performing workfor pay or compensation in the home, and the injuryor illness is directly related to the performance ofwork rather than to the general home environment orsetting. For example, if an employee drops a box ofwork documents and injures his or her foot, the case

is considered work-related. If an employees finger-nail is punctured by a needle from a sewing machineused to perform garment work at home, becomesinfected and requires medical treatment, the injury isconsidered work-related. If an employee is injuredbecause he or she trips on the family dog while rush-ing to answer a work phone call, the case is not con-sidered work-related. If an employee working athome is electrocuted because of faulty home wiring,the injury is not considered work-related.



Section 1904.5 Determination of work-relatednessThis section of the final rule sets out the require-ments employers must follow in determiningwhether a given injury or illness is work-related.Paragraph 1904.5(a) states that an injury or illnessmust be considered work-related if an event or expo-sure in the work environment caused or contributedto the injury or illness or significantly aggravated apre-existing injury or illness. It stipulates that, forOSHA recordkeeping purposes, work relationship ispresumed for such injuries and illnesses unless anexception listed in paragraph 1904.5(b)(2) specificallyapplies.

Implementation requirements are set forth inparagraph (b) of the final rule. Paragraph (b)(1)defines work environment for recordkeeping pur-poses and makes clear that the work environmentincludes the physical locations where employees areworking as well as the equipment and materials usedby the employee to perform work.

Paragraph (b)(2) lists the exceptions to the pre-sumption of work-relatedness permitted by the finalrule; cases meeting the conditions of any of the listedexceptions are not considered work-related and aretherefore not recordable in the OSHA recordkeepingsystem.

Section 8(c)(2) of the OSH Act directs theSecretary to issue regulations requiring employers torecord work-related injuries and illnesses. It isimplicit in this wording that there must be a causalconnection between the employment and the injuryor illness before the case is recordable. For mosttypes of industrial accidents involving traumaticinjuries, such as amputations, fractures, burns and

electrocutions, a causal connection is easily deter-mined because the injury arises from forces, equip-ment, activities, or conditions inherent in the employ-ment environment. Thus, there is general agreementthat when an employee is struck by or caught inmoving machinery, or is crushed in a constructioncave-in, the case is work-related. It is also acceptedthat a variety of illnesses are associated with expo-sure to toxic substances, such as lead and cadmium,used in industrial processes. Accordingly, there is lit-tle question that cases of lead or cadmium poisoningare work-related if the employee is exposed to thesesubstances at work.

On the other hand, a number of injuries and ill-nesses that occur, or manifest themselves, at workare caused by a combination of occupational factors,such as performing job-related bending and liftingmotions, and factors personal to the employee, suchas the effects of a pre-existing medical condition. Inmany such cases, it is likely that occupational factorshave played a tangible role in causing the injury orillness, but one that cannot be readily quantified assignificant or predominant in comparison withthe personal factors involved.

Injuries and illnesses also occur at work that donot have a clear connection to a specific work activi-ty, condition, or substance that is peculiar to theemployment environment. For example, an employ-ee may trip for no apparent reason while walkingacross a level factory floor; be sexually assaulted bya co-worker; or be injured accidentally as a result ofan act of violence perpetrated by one co-workeragainst a third party. In these and similar cases, theemployees job-related tasks or exposures did not


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create or contribute to the risk that such an injurywould occur. Instead, a causal connection is estab-lished by the fact that the injury would not haveoccurred but for the conditions and obligations ofemployment that placed the employee in the positionin which he or she was injured or made ill.

The final rules test for work-relationship and itssimilarity to the former and proposed rules. -- Thefinal rule requires that employers consider an injuryor illness to be work-related if an event or expo-sure in the work environment either caused or con-tributed to the resulting condition or significantlyaggravated a pre-existing injury or illness. Workrelatedness is presumed for injuries and illnessesresulting from events or exposures occurring in thework environment, unless an exception in Section1904.5(b)(2) specifically applies.

Under paragraph 1904.5(b)(1), the work environ-ment means the establishment and other locationswhere one or more employees are working or arepresent as a condition of their employment. Thework environment includes not only physical loca-tions, but also equipment or materials used by theemployee during the course of his or her work.

Who Makes the Determination?OSHA has concluded that requiring employers torely on a health care professional for the determina-tion of the work-relatedness of occupational injuriesand illnesses would be burdensome, impractical, andunnecessary. Small employers, in particular, wouldbe burdened by such a provision. Further, if the pro-fessional is not familiar with the injured workers jobduties and work environment, he or she will not havesufficient information to make a decision about thework-relatedness of the case. OSHA also does notagree that health care professional involvement isnecessary in the overwhelming majority of cases.Employers have been making work-relatednessdeterminations for more than 20 years and have per-formed this responsibility well in that time. This doesnot mean that employers may not, if they choose,seek the advice of a physician or other licensedhealth care professional to help them understand thelink between workplace factors and injuries and ill-nesses in particular cases; it simply means thatOSHA does not believe that most employers willneed to avail themselves of the services of such aprofessional in most cases.

Accordingly, OSHA has concluded that the deter-mination of work-relatedness is best made by theemployer, as it has been in the past. Employers arein the best position to obtain the information, both

from the employee and the workplace, that is neces-sary to make this determination. Although expertadvice may occasionally be sought by employers inparticularly complex cases, the final rule providesthat the determination of work-relatedness ultimatelyrests with the employer.

The Final Rules Exceptions to the GeographicPresumptionParagraph 1904.5(b)(2) of the final rule contains eightexceptions to the work environment presumptionthat are intended to exclude from the recordkeepingsystem those injuries and illnesses that occur ormanifest in the work environment, but have beenidentified by OSHA, based on its years of experiencewith recordkeeping, as cases that do not provideinformation useful to the identification of occupation-al injuries and illnesses and would thus tend to skewnational injury and illness statistics. These eightexceptions are the only exceptions to the presump-tion permitted by the final rule.

(i) Injuries or illnesses will not be consideredwork-related if, at the time of the injury or illness, theemployee was present in the work environment as amember of the general public rather than as anemployee.

This exception, which is codified at paragraph1904.5(b)(2)(i), is based on the fact that no employ-ment relationship is in place at the time an injury orillness of this type occurs. A case exemplifying thisexception would occur if an employee of a retailstore patronized that store as a customer on a non-work day and was injured in a fall. This exceptionallows the employer not to record cases that occuroutside of the employment relationship when his orher establishment is also a public place and a workerhappens to be using the facility as a member of thegeneral public. In these situations, the injury or ill-ness has nothing to do with the employees work orthe employees status as an employee, and it wouldtherefore be inappropriate for the recordkeeping sys-tem to capture the case.

(ii) Injuries or illnesses will not be consideredwork-related if they involve symptoms that surface atwork but result solely from a non-work-related eventor exposure that occurs outside the work environ-ment.

OSHAs recordkeeping system is intended only tocapture cases that are caused by conditions or expo-sures arising in the work environment. It is notdesigned to capture cases that have no relationshipwith the work environment. For this exception toapply, the work environment cannot have caused,

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contributed to, or significantly aggravated the injuryor illness. This exception is consistent with the posi-tion followed by OSHA for many years and reiteratedin the final rule: that any job-related contribution tothe injury or illness makes the incident work-related,and its corollary--that any injury or illness to whichwork makes no actual contribution is not work-relat-ed. An example of this type of injury would be a dia-betic incident that occurs while an employee is work-ing. Because no event or exposure at work con-tributed in any way to the diabetic incident, the caseis not recordable. This exception allows the employerto exclude cases where an employees non-workactivities are the sole cause of the injury or illness.

(iii) Injuries and illnesses will not be consideredwork-related if they result solely from voluntary partici-pation in a wellness program or in a medical, fitness,or recreational activity such as blood donation, physi-cal, flu shot, exercise classes, racquetball, or baseball.

This exception allows the employer to excludecertain injury or illness cases that are related to per-sonal medical care, physical fitness activities and vol-untary blood donations. The key words here aresolely and voluntary. The work environment can-not have contributed to the injury or illness in anyway for this exception to apply, and participation inthe wellness, fitness or recreational activities must bevoluntary and not a condition of employment. This exception allows the employer to exclude casesthat are related to personal matters of exercise, recre-ation, medical examinations or participation in blooddonation programs when they are voluntary and arenot being undertaken as a condition of work. Forexample, if a clerical worker was injured while per-forming aerobics in the company gymnasium duringhis or her lunch hour, the case would not be work-related. On the other hand, if an employee who wasassigned to manage the gymnasium was injuredwhile teaching an aerobics class, the injury would bework-related because the employee was working atthe time of the injury and the activity was not volun-tary. Similarly, if an employee suffered a severe reac-tion to a flu shot that was administered as part of avoluntary inoculation program, the case would notbe considered work-related; however, if an employeesuffered a reaction to medications administered toenable the employee to travel overseas on business,or the employee had an illness reaction to a medica-tion administered to treat a work-related injury, thecase would be considered work-related.

(iv) Injuries and illnesses will not be consideredwork-related if they are solely the result of anemployee eating, drinking, or preparing food or drink

for personal consumption (whether bought on thepremises or brought in).

An example of the application of this exceptionwould be a case where the employee injured himselfor herself by choking on a sandwich brought fromhome but eaten in the employers establishment;such a case would not be considered work-relatedunder this exception. On the other hand, if theemployee was injured by a trip or fall hazard presentin the employers lunchroom, the case would be con-sidered work-related. In addition, a note to the excep-tion makes clear that if an employee becomes ill as aresult of ingesting food contaminated by workplacecontaminants such as lead, or contracts food poison-ing from food items provided by the employer, thecase would be considered work-related. As a result, ifan employee contracts food poisoning from a sand-wich brought from home or purchased in the compa-ny cafeteria and must take time off to recover, thecase is not considered work related. On the otherhand, if an employee contracts food poisoning froma meal provided by the employer at a business meet-ing or company function and takes time off to recov-er, the case would be considered work related. Foodprovided or supplied by the employer does notinclude food purchased by the employee from thecompany cafeteria, but does include food purchasedby the employer from the company cafeteria for busi-ness meetings or other company functions.

(v) Injuries and illnesses will not be consideredwork-related if they are solely the result of employ-ees doing personal tasks (unrelated to their employ-ment) at the establishment outside of their assignedworking hours.

This exception, which responds to inquiriesreceived over the years, allows employers limitedflexibility to exclude from the recordkeeping systemsituations where the employee is using the employ-ers establishment for purely personal reasons duringhis or her off-shift time. For example, if an employeewere using a meeting room at the employers estab-lishment outside of his or her assigned workinghours to hold a meeting for a civic group to which heor she belonged, and slipped and fell in the hallway,the injury would not be considered work-related. Onthe other hand, if the employee were at the employ-ers establishment outside his or her assigned work-ing hours to attend a company business meeting or acompany training session, such a slip or fall wouldbe work-related.

(vi) Injuries and illnesses will not be consideredwork-related if they are solely the result of personalgrooming, self-medication for a non-work-related


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detecting, diagnosing and verifying mental illnesses;and the sensitivity and privacy concerns raised bymental illnesses. Therefore, the final rule requiresemployers to record only those mental illnesses veri-fied by a health care professional with appropriatetraining and experience in the treatment of mental ill-ness, such as a psychiatrist, psychologist, or psychi-atric nurse practitioner. The employer is under noobligation to seek out information on mental illness-es from its employees, and employers are requiredto consider mental illness cases only when anemployee voluntarily presents the employer with anopinion from the health care professional that theemployee has a mental illness and that it is workrelated. In the event that the employer does notbelieve the reported mental illness is work-related,the employer may refer the case to a physician orother licensed health care professional for a secondopinion. OSHA also emphasizes that work-relatedmental illnesses, like other illnesses, must be record-ed only when they meet the severity criteria outlinedin Section 1904.7. In addition, for mental illnesses, theemployees identity must be protected by omittingthe employees name from the OSHA 300 Log andinstead entering privacy concern case as requiredby Section 1904.29.

Proposed Exception....The Case Results Solely FromNormal Body Movements, not Job-Related Motionsor Contribution from the Work Environment.OSHA has decided not to include a recordkeepingexception for injuries or illnesses associated withnormal body movements in the final rule.Further,the final rule already makes clear that injuries and ill-nesses that result solely from non-work causes arenot considered work-related and therefore areexcluded from the Log, and establishes the require-ments employers must follow to determine work-relationship for an injury or illness when it is unclearwhether the precipitating event occurred in the work-place or elsewhere (see paragraph 1904.5(b)(3)).According to the requirements in that section, theemployer must evaluate the employees work dutiesand the work environment to decide whether it ismore likely than not that events or exposures in thework environment either caused or contributed to thecondition or significantly aggravated a pre-existingcondition. If so, the case is work-related.

Additional Exceptions Suggested by Commentersbut Not Adopted [in the final rule].Acts of God:OSHA has not adopted such anexception because doing so would not be in keeping

condition, or are intentionally self-inflicted. This exception allows the employer to exclude

from the Log cases related to personal hygiene, self-administered medications and intentional self-inflict-ed injuries, such as attempted suicide. For example, aburn injury from a hair dryer used at work to dry theemployees hair would not be work-related. Similarly,a negative reaction to a medication brought fromhome to treat a non-work condition would not beconsidered a work-related illness, even though it firstmanifested at work.

(vii) Injuries will not be considered work-related ifthey are caused by motor vehicle accidents occurringin company parking lots or on company access roadswhile employees are commuting to or from work.

This exception allows the employer to excludecases where an employee is injured in a motor vehi-cle accident while commuting from work to home orfrom home to work or while on a personal errand.For example, if an employee was injured in a caraccident while arriving at work or while leaving thecompanys property at the end of the day, or whiledriving on his or her lunch hour to run an errand, thecase would not be considered work-related. On theother hand, if an employee was injured in a car acci-dent while leaving the property to purchase suppliesfor the employer, the case would be work-related.Some injuries and illnesses that occur in companyparking lots are clearly caused by work conditions oractivities--e.g., being struck by a car while paintingparking space indicators on the pavement of the lot,slipping on ice permitted to accumulate in the lot bythe employer--and by their nature point to conditionsthat could be corrected to improve workplace safetyand health.

(viii) Common colds and flu will not be consideredwork-related.

Paragraph 1904.5(b)(2)(viii) allows the employer toexclude cases of common cold or flu, even if contract-ed while the employee was at work. However, in thecase of other infectious diseases such as tuberculosis,brucellosis, and hepatitis C, employers must evaluatereports of such illnesses for work relationship, just asthey would any other type of injury or illness.

(ix) Mental illness will not be considered work-related unless the employee voluntarily provides theemployer with an opinion from a physician or otherlicensed health care professional with appropriatetraining and experience (psychiatrist, psychologist,psychiatric nurse practitioner, etc.) stating that theemployee has a mental illness that is work-related.

Recording work-related mental illnesses involvesseveral unique issues, including the difficulty of

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with the geographic presumption underpinning thisfinal rule, and would exclude cases that are in factwork-related. For example, if a worker was injured ina flood while at work, the case would be work-relat-ed, even though the flood could be considered an actof God. Accordingly, if workplace injuries and illness-es result from these events, they must be enteredinto the records (for a more detailed discussion ofthis point, see the Legal Authority section, above).

Phobias:...OSHA has not included an exception fromrecording in the final recordkeeping regulation forphobias or any other type of mental illness. Voluntaryparticipation in a medical activity. OSHA also believesthat it would be unreasonable to omit a case of lossof consciousness resulting from the administration ofa blood test for lead exposure at work. These testsare necessitated by the employees exposure to leadat work and are required by OSHAs lead standard (29CFR 1910.1025). The other scenarios presented bythese commenters, involving spiders, snakes, etc.,would also be work-related under the geographicpresumption.

Illegal activities and horseplay:OSHA has notadopted any of these recommended exceptions inthe final recordkeeping rule because excludingthese injuries and illnesses would be inconsistentwith OSHAs longstanding reliance on the geo-graphic presumption to establish work-relatedness.Furthermore, the Agency believes that many of theworking conditions pointed to in these commentsinvolve occupational factors, such as the effective-ness of disciplinary policies and supervision. Thus,recording such incidents may serve to alert boththe employer and employees to workplace safetyand health issues.

Non-occupational degenerative conditions:...such as high blood pressure, arthritis, coronaryartery disease, heart attacks, and cancer that candevelop regardless of workplace exposure. OSHAhas not added such an exception to the rule, butthe Agency believes that the fact that the ruleexpects employers confronted with such cases tomake a determination about the extent to which, ifat all, work contributed to the observed conditionwill provide direction about how to determine thework-relatedness of such cases. For example, ifwork contributes to the illness in some way, then itis work-related and must be evaluated for itsrecordability. On the other hand, if the case is whol-ly caused by non-work factors, then it is not work-related and will not be recorded in the OSHArecords.

Determining Whether the Precipitating Event or Exposure Occurred in the Work Environment or ElsewhereParagraph 1904.5(b)(3) of the final rule provides guid-ance on applying the geographic presumption whenit is not clear whether the event or exposure that pre-cipitated the injury or illness occurred in the workenvironment or elsewhere. If an employee reportspain and swelling in a joint but cannot say whetherthe symptoms first arose during work or duringrecreational activities at home, it may be difficult forthe employer to decide whether the case is work-related. The same problem arises when an employeereports symptoms of a contagious disease thataffects the public at large, such as a staphylococcusinfection (staph infection) or Lyme disease, and theworkplace is only one possible source of the infec-tion. In these situations, the employer must examinethe employees work duties and environment todetermine whether it is more likely than not that oneor more events or exposures at work caused or con-tributed to the condition. If the employer determinesthat it is unlikely that the precipitating event or expo-sure occurred in the work environment, the employerwould not record the case. In the staph infectionexample given above, the employer would considerthe case work-related, for example, if anotheremployee with whom the newly infected employeehad contact at work had been out with a staph infec-tion. In the Lyme disease example, the employerwould determine the case to be work-related if, forexample, the employee was a groundskeeper withregular exposure to outdoor conditions likely toresult in contact with deer ticks.

In applying paragraph 1904.5(b)(3), the questionemployers must answer is whether the precipitatingevent or exposure occurred in the work environment.If an event, such as a fall, an awkward motion or lift,an assault, or an instance of horseplay, occurs atwork, the geographic presumption applies and thecase is work-related unless it otherwise falls withinan exception. Thus, if an employee trips while walk-ing across a level factory floor, the resulting injury isconsidered work-related under the geographic pre-sumption because the precipitating event -- the trip-ping accident -- occurred in the workplace. The caseis work-related even if the employer cannot deter-mine why the employee tripped, or whether any par-ticular workplace hazard caused the accident tooccur. However, if the employee reports an injury atwork but cannot say whether it resulted from anevent that occurred at work or at home, as in theexample of the swollen joint, the employer might


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Death, providing that the preexisting injury or illnesswould likely not have resulted in death but for theoccupational event or exposure; (ii) Loss of con-sciousness, providing that the preexisting injury orillness would likely not have resulted in loss of con-sciousness but for the occupational event or expo-sure; (iii) A day or days away from work or of restrict-ed work, or a job transfer that otherwise would nothave occurred but for the occupational event orexposure; or (iv) Medical treatment where no med-ical treatment was needed for the injury or illnessbefore the workplace event or exposure, or a changein the course of medical treatment that was beingprovided before the workplace event or exposure.OSHAs decision not to require the recording of casesinvolving only minor aggravation of preexisting con-ditions is consistent with the Agencys efforts in thisrulemaking to require the recording only of non-minor injuries and illnesses; for example, the finalrule also no longer requires employers to recordminor illnesses on the Log.

Preexisting ConditionsParagraph 1904.5(b)(5) stipulates that pre-existingconditions, for recordkeeping purposes, are condi-tions that resulted solely from a non-work-relatedevent or exposure that occurs outside the employerswork environment. Pre-existing conditions alsoinclude any injury or illness that the employee expe-rienced while working for another employer.

Off Premises DeterminationsIn the final rule, (paragraph 1904.5(b)(1)) the sameconcept is carried forward in the definition of thework environment, which defines the environment a

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