2.10.10

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OSHA has announced a new proposed Injury and Illness Recordkeeping Regulation, §1904.12, which would add a separate column on the OSHA 300 Log for the recording of musculoskeletal disorders (MSDs). The proposed regulation would be virtually identical to the 2001 final Recordkeeping Regulation on MSDs which was deleted before it went into effect.

OSHA is conducting a two-day public meeting on the proposed regulation beginning on March 9, 2010, at the U. S. Department of Labor in Washington, D.C. Anyone interested in speaking about the proposed regulation must submit a request by February 16, 2010. In addition, OSHA is inviting written public comment – electronically, by fax, or by mail by March 15, 2010.

Under the proposed regulation, MSDs are defined as:

“...disorders of the muscles, nerves, tendons, ligaments, joints, cartilage and spinal discs. MSDs DO NOT include disorders caused by slips, trips, falls, motor vehicle accidents, or other similar accidents. Examples of MSDs include: Carpal tunnel syndrome, Rotator cuff syndrome, De Quervain’s disease, Trigger finger, Tarsal tunnel syndrome, Sciatica, Epicondylitis, Tendinitis, Raynaud’s phenomenon, Carpet layers knee, Herniated spinal disc, and Low back pain.”

Back cases would continue to be recorded as either injuries or illnesses depending upon whether the condition resulted from an instantaneous event or exposure.

Although the above definition of an MSD refers to “disorders” and specific, diagnosed conditions, the proposed regulation makes it clear that an MDS consists of any reported “pain, tingling, burning, numbness or any other subjective symptom of an MSD” (emphasis added) and that the case is recordable if an employee with such reported symptoms is offered or receives “medical treatment.” OSHA has acknowledged in the announcement of its proposed new regulation that this definition is “broad and is intentionally so,” although the Agency does not explain why the definition must be so broad. Although OSHA has denied that these changes to the recordkeeping requirements are a precursor to some form of a new Ergonomics Standard, many believe that the MSD column information will be used to support the issuance of such a standard.

With this announcement, OSHA is also stating its intention to change the Recordkeeping Compliance Directive to eliminate language under which employers do not have to record cases when licensed health care professionals recommend that employees’ job tasks be temporarily revised to prevent the initial complaints of “minor musculoskeletal discomfort” from developing into a more serious condition. Eliminating this language from the Recordkeeping Compliance Directive would presumably also result in the deletion of Frequently Asked Question 7-19, which provides as follows:

QUESTION 7-19. Does the employer have to record a work-related injury and illness, if an employee experiences minor musculoskeletal discomfort, the health care professional determines that the employee is fully able to perform all of his or her routine job functions, but the employer assigns a work restriction to the injured employee?

As set out in Chapter 2, I., F. of the Recordkeeping Policies and Procedures Manual (CPL 2-0.131) a case would not be recorded under section 1904.7(b)(4) if 1) the employee experiences minor musculoskeletal discomfort, and 2) a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and 3) the employer assigns a work restriction to that employee for the purpose of preventing a more serious condition from developing. If a case is or becomes recordable under any other general recording criteria contained in section 1904.7, such as medical treatment beyond first aid, a case involving minor musculoskeletal discomfort would be recordable.

Finally, if this proposed new regulation is promulgated by OSHA, it would go into effect beginning January 1, 2011.

If you have any questions about this new proposed rule, or would be interested in submitting comments to OSHA by the March 15, 2010, deadline, please contact any of the attorneys in the Constangy OSHA Practice Group: Bill Principe at bprincipe@constangy.com, David Smith at dsmith@constangy.com, Pat Tyson at ptyson@constangy.com, or Neil Wasser at nwasser@constangy.com. You may also call us at 404-525-8622.

Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A “Go To” Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by publications such as Chambers USA, Super Lawyers, and Top One Hundred Labor Attorneys in the United States. More than 100 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Georgia, Florida, South Carolina, North Carolina, Tennessee, Alabama, Virginia, Massachusetts, Missouri, Illinois, Wisconsin, Texas and California. For more information, visit www.constangy.com.

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