After issuing a flurry of new enforcement initiatives earlier in the year, such as the Severe Violator Enforcement Program and its memorandum administratively increasing civil penalties, OSHA seems to have shifted its focus a little back toward its regulatory program. OSHA rulemaking often proceeds at a glacial pace, but in the last few months the Agency has issued two significant rulemaking documents: a proposed rule to revise standards for housekeeping, walking-working surfaces, and fall protection in general industry, and a final rule updating OSHA’s Cranes and Derricks in Construction standards. The latter document will be published in the Federal Register on August 9.
That is not the end, however. OSHA’s final rule updating recordkeeping requirements to add a separate column for recording musculoskeletal disorders (MSDs) is at the Office of Management and Budget for review. Employers should expect to see it issued in the very near future.
In OSHA’s proposed MSD column rule, published earlier this year, employers would have been required to “check the box” in a separate column on the OSHA 300 log – an “MSD” column – for injuries and illnesses that fit within the Agency’s proposed definition. For purposes of the proposal, the Agency defined MSDs as:
[D]isorders 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.
OSHA also proposed to remove existing language from its recordkeeping compliance directive that “minor musculoskeletal discomfort” is not recordable as a restricted work case “if a health care professional determines that the employee is fully able to perform all of his or her routine job functions, and the employer assigns a work restriction for the purpose of preventing a more serious injury.” OSHA stated it was concerned that this language created confusion among employers about recording MSDs.
OSHA’s proposal elicited significant comment from employer and employee groups. While OSHA may make some changes to its proposal in response to these comments, given the speed with which the Agency is proceeding with the rulemaking, employers should anticipate OSHA finalizing a new MSD column on the OSHA 300 log in some form and making that change effective in the beginning of 2011.