A settlement reached last week by OSHA and the National Association of Manufacturers (NAM) resolves issues raised by NAM in a lawsuit last March concerning OSHA's revised recordkeeping rule. The resolution means that the rule will take effect as scheduled on January 1, 2002.

As part of the settlement, OSHA will focus initially on compliance assistance, rather than enforcement. Thus, no citations will be issued for violations of the recordkeeping rule during the first 120 days after January 1, 2002, provided employers try to meet their recordkeeping obligations and agree to make any necessary corrections.

Additionally, OSHA has clarified what constitutes a work-related injury, explaining that a case is work-related if, and only if, a work event or exposure is a discernible cause of the injury or illness, or of a significant aggravation to a preexisting condition and none of the rule's exceptions to work-relatedness applies. Employers must make this determination. If an employer says a case is not work-related and is subsequently cited, the burden of proof is on OSHA to show the injury or illness was work-related.

"This agreement sets the tone for the kind of relationship we want with NAM, other industry leaders and all employers," said John Henshaw, OSHA Administrator. "It demonstrates that we can work together for the common goal of worker safety and health."

OSHA has also agreed to clarify other aspects of the rule, including:

  • An employer doesn't need to record, as a restricted work case, a case in which: (1) an employee experiences minor musculoskeletal discomfort; (2) a healthcare professional determines that the employee is fully able to perform his or her job functions; and (3) the employer assigns a work restriction to that employee to prevent a more serious condition from developing.

  • An employee's report of an injury or illness does not automatically establish that an injury or illness exists and must be recorded. The employer must first decide whether an injury or illness has occurred.

  • If oxygen is administered to an employee purely as a precautionary measure, the case is not recordable. Only when oxygen is given to an employee who has been exposed to a substance and exhibits symptoms of an injury or illness is the case recordable.

The language specified in the settlement will be incorporated into the forthcoming compliance directive scheduled for publication this month.

The settlement agreement will be published in the Federal Register within the next 30 days.