South Carolina Code of Regulations
(Unannotated)
Current through State Register Volume 31, Issue 9, effective September 28, 2007.
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CHAPTER 71.
DEPARTMENT OF LABOR, LICENSING AND REGULATION--DIVISION OF LABOR
Section 41-15-210, South Carolina Code of Laws, provides that "the Commissioner of Labor may promulgate, modify or revoke rules and regulations which will have full force and effect of law upon being properly certified and filed for the purpose of attaining the highest degree of health and safety protection for any and all employees working within the State of South Carolina, whether employed in the public or private sector."
71-101. Scope.
These rules and regulations shall be applicable to all public and private places of employment having one or more employees.
71-102. Definitions.
As used in this article, unless the context clearly requires otherwise:
A. "State" means the State of South Carolina.
B. "Department" means the Department of Labor, State of South Carolina.
C. "Commissioner" means the Commissioner, Department of Labor, State of South Carolina.
D. "Employer" means any individual, partnership, joint venture, cooperative association or corporation licensed to do business in the State, and the State of South Carolina and any political subdivision thereof.
E. "Employee" means any person employed by an individual, partnership, joint venture, cooperative association or corporation licensed to do business in the State, or the State of South Carolina and any political subdivision thereof.
F. "Safety Specialist" means any individual commissioned by the Department of Labor, the State of South Carolina or any political subdivision thereof to enforce safety and health laws, rules and regulations.
G. "Person" means any individual, partnership, joint venture, corporative association, corporation, organization of employees, the State of South Carolina or any political subdivision thereof.
H. "Party" means any individual, partnership, joint venture, cooperative association, corporation, the State of South Carolina or any political subdivision thereof who shall have a vested interest to participate in a hearing conducted in accordance with any subarticle of this article.
I. "Affected Employee" means any employee who would be affected by the grant or denial of any petition.
J. "Standard" means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.
K. [Reserved]
L. [Reserved]
M. [Reserved]
N. "Lost Workdays" is the number of days (consecutive or not) after, but not including, the day of injury or illness during which the employee would have worked but could not do so; that is, could not perform all or any part of his normal assignment during all or any part of the workday or shift, because of the occupational injury or illness.
O. "Establishment" means a single physical location where business is conducted or where services or industrial operations are performed. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas and sanitary service; and similar operations, the establishment is represented by main or branch offices, terminals, stations, etc. that either supervise such activities or are the base from which personnel carry out these activities.
P. "Director of Inspection" means that person in the Department of Labor, State of South Carolina, who is responsible for inspections made pursuant to the state's Occupational Safety and Health Laws, and, that person in other state agencies having the responsibility of directing the inspection force of that agency which has a contractual agreement with the Department of Labor, State of South Carolina, to enforce the state's Occupational Safety and Health Laws.
71-103. Notice.
Prior to the promulgation, modification or revocation of any rule or regulation the Commissioner shall conduct a hearing. Notice of such hearing shall be published in at least one newspaper with general circulation of the geographical areas in which the proposed rule or regulation will have substantial impact at least ten (10) days before such hearing. The notice shall contain the date, time, and place of the hearing and a brief description of the proposed rule or regulation. Any person may appear and be given an opportunity to oppose, recommend or endorse adoption of such promulgation, modification or revocation.
71-104. Hearings.
Section 41-15-220, South Carolina Code of Laws, provides that, "Prior to the promulgation, modification or revocation of any rule or regulation issued pursuant to this act the Commissioner shall conduct a public hearing at which all interested persons shall be provided an opportunity to appear and present their comments either orally, written or both."
71-105. Petition for the Issuance, Amendment, or Repeal of a Standard.
A. Petition. Any interested person may petition in writing to the Commissioner to promulgate, modify, or revoke a Standard. The petition should set forth the terms or the substance of the rules desired, the effects thereof if promulgated, and the reasons therefor.
B. Presentation of Comments. Within a reasonable time after the receipt of a submission pursuant to subparagraph A of this regulation, the Commissioner shall afford interested persons the opportunity to appear and present their comments either orally, written or both. Notice of the hearing shall be given as provided in R. 71-103.
71-106. Amendments to Article and Regulations.
The Commissioner may on his own motion modify or revoke any rules and regulations contained in these subarticles or regulations. In the event of conflict among any such rules and regulations, the Commissioner shall take the action necessary to eliminate the conflict, including the revocation or modification of a rule or regulation in this article, or regulation thereof, so as to assure the greatest protection for the safety and health of employees.
71-107. Applicability of Standards.
A. Applicability to Employer. The Standards contained in these subarticles shall apply with respect to all employers in this State employing one (1) or more employees.
B. Applicability to Conditions, Practices, Etc. If a particular Standard is specifically applicable to a condition, practice, means, method, operation, or process, it shall prevail over any different general standard which might otherwise be applicable to the same condition, practice, means, method, operation, or process.
C. Specific vs General Standards. Any standard shall apply according to its terms to any employment and place of employment in any industry, even though particular standards are also prescribed for that particular industry.
D. Classes of Persons Protected by Standards. In the event a standard protects a class of persons larger than employees, the standard shall be applicable under these subarticles only to employees and their employment and places of employment.
71-108. Incorporation by Reference.
A. The standards of agencies of the U.S. Government which are legally incorporated by reference in this article, have the same force and effect as other standards in this article.
B. Copies of the standards which are incorporated by reference may be examined at the South Carolina Department of Labor, 3600 Forest Drive, Columbia, South Carolina. Copies of such private standards may be obtained from the issuing organizations. Their names and addresses are listed in the pertinent subarticles of this article, and can also be obtained from the South Carolina Department of Labor.
C. Any changes in the standards incorporated by reference in this article and an official file of such changes are available for inspection at the South Carolina Department of Labor, 3600 Forest Drive, Columbia, South Carolina.
71-109. Amendments to These Subarticles.
Any person may at any time petition the Commissioner in writing to revise, amend, or revoke any provisions of these subarticles. The petition shall set forth either the terms or the substance of the rule desired, with a concise statement of the reason therefor and the effects thereof.
71-110. Representatives of Commissioner Not To Be Required to Sign Statements.
No employer or employee representative shall, as a condition precedent to the performing of an inspection at a place of employment, require any representative whose purpose it is to make an inspection under these rules and regulations to sign any statement, form or writing which is designed for the purpose of the representative waiving of any right or restricting, expanding or modifying any duty.
71-111. Confidentiality of Trade Secrets.
All information reported to or otherwise obtained by the Commissioner or his representatives in connection with any inspection or proceeding under these subarticles which contains or which might reveal a trade secret shall be considered confidential. In any proceedings the Commissioner or the court shall issue such orders as may be appropriate to protect the confidentiality of trade secrets.
71-112. General Duty Clause.
A. Employers shall maintain a place of employment which is free of recognized hazards which may cause death or serious physical harm to his employees and he shall comply with this regulation and other occupational safety and health rules and regulations promulgated under Chapter 15 of Title 41, Code of Laws, State of South Carolina, 1976, as amended.
B. Each employee shall comply with occupational safety and health rules and regulations promulgated under Chapter 15 of Title 41, Code of Laws, State of South Carolina, 1976, as amended; and, all employers' rules and regulations designed to protect him from recognized hazards for which there is no state occupational safety and health rule or regulation covering such situations.
71-113. Rules of Construction.
A. The prime contractor and any subcontractors may make their own arrangements with respect to obligations which might be more appropriately treated on a jobsite basis rather than individually. Thus, for example, the prime contractor and his subcontractors may wish to make an express agreement that the prime contractor or one of the subcontractors will provide all required first-aid or toilet facilities, thus relieving the subcontractors from actual, but not any legal responsibility (or, as the case may be, relieving the other subcontractors from actual, but not any legal responsibility). In no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of Subarticle 7 for all work to be performed under the contract.
B. By contracting for full performance of a contract, the prime contractor assumes all obligations prescribed as employer obligations under the standards contained in Subarticle 7, whether or not he subcontracts any part of the work.
C. To the extent that a subcontractor of any tier agrees to perform any part of the contract, he also assumes responsibility for complying with the standards in Subarticle 7 with respect to this subarticle. Thus, the prime contractor assumes entire responsibility under the contract and the subcontractor assumes responsibility with respect to his portion of the work. With respect to subcontracted work, the prime contractor and any subcontractor shall be deemed to have joint responsibility.
D. Where joint responsibility exists, both the prime contractor and his subcontractor or subcontractors, regardless of tier, shall be considered subject to the enforcement provisions of the Rules and Regulations, Commissioner of Labor, State of South Carolina.
71-114. [Reserved]
SUBARTICLE 2.
RULES OF PRACTICE FOR VARIANCES, LIMITATIONS, VARIATIONS, TOLERANCES, AND EXEMPTIONS UNDER THE SAFETY AND HEALTH LAWS OF THE STATE OF SOUTH CAROLINA
71-200. Purpose.
This subarticle contains the rules of practice for administrative proceedings.
A. To grant variances and other relief under the Safety and Health Laws, rules and regulations of the State of South Carolina, and
B. To provide limitations, variations, tolerances, and exemptions thereof.
C. These rules shall be construed to secure a prompt and just conclusion of proceedings subject thereto.
71-201. Definitions.
As used in this subarticle, unless the context clearly requires otherwise:
A. "State" means the State of South Carolina.
B. "Department" means the Department of Labor, State of South Carolina.
C. "Commissioner" means the Commissioner, Department of Labor, State of South Carolina.
D. "Employer" means any individual, partnership, joint venture, cooperative association or corporation licensed to do business in the State, and the State of South Carolina and any political subdivision thereof.
E. "Employee" means any person employed by an individual, partnership, joint venture, cooperative association or corporation licensed to do business in the State, or the State of South Carolina and any political subdivision thereof.
F. "Safety Specialist" means any individual commissioned by the Department of Labor, the State of South Carolina or any political subdivision thereof to enforce safety and health laws, rules and regulations.
G. "Person" means any individual, partnership, joint venture, cooperative association, corporation, organization of employees, the State of South Carolina or any political subdivision thereof.
H. "Party" means any individual, partnership, joint venture, cooperative association, corporation, the State of South Carolina or any political subdivision thereof who shall have a vested interest to participate in a hearing conducted in accordance with this subarticle.
I. "Affected Employee" means any employee who would be affected by the grant or denial of any petition.
J. "Standard" means a standard which requires conditions, or the adoption or use of one or more practices, means, methods, operations, or processes, reasonably necessary or appropriate to provide safe or healthful employment and places of employment.
K. [Reserved]
L. [Reserved]
M. [Reserved]
N. "Lost Workdays" is the number of days (consecutive or not) after, but not including, the day of injury or illness during which the employee would have worked but could not do so; that is, could not perform all or any part of the workday or shift, because of the occupational injury or illness.
O. "Establishment" means a single physical location where business is conducted or where services or industrial operations are performed. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas and sanitary service; and similar operations, the establishment is represented by main or branch offices, terminals, stations, etc. that either supervise such activities or are the base from which personnel carry out these activities.
P. "Director of Inspection" means that person in the Department of Labor, State of South Carolina, who is responsible for inspections made pursuant to the State's Occupational Safety and Health Laws, and, that person in other State agencies having the responsibility of directing the inspection force of that agency which has a contractual agreement with the Department of Labor, State of South Carolina, to enforce the State's Occupational Safety and Health Laws.
71-202. Amendments to This Subarticle.
The Commissioner may at any time revise, amend, or revoke any provision of this subarticle, on his own motion or upon the written petition of any person.
71-203. Effect of Variances.
All variances granted pursuant to this Article shall have only future effect. In his discretion, the Commissioner may decline to entertain a petition for a variance on a subject or issue concerning which a citation has been issued to the employer involved and a proceeding on the citation or a related issue concerning a proposed penalty or period of abatement is pending before the Commissioner until the completion of such proceeding.
71-204. Public Notice of a Granted Variance, Limitation, Variation, Tolerance, or Exemption.
Every final action granting a variance, limitation, variation, tolerance, or exemption will be kept on file in the Office of the Commissioner, Department of Labor, Columbia, South Carolina.
71-205. Form of Petitions, Verification; Copies.
A. Forms of Petitions and Copies. No particular form is prescribed for petitions and other papers which may be filed in proceedings under this subarticle. However, any petition and others shall be filed with the Commissioner. The original shall be type-written. Clear carbon copies, or printed or processed copies are acceptable. (See R. 71-206 and R. 71-207 B for contents.)
B. Verification. Every petition or other paper which is filed in proceedings under these subarticles shall be verified by the person filing same, his attorney or authorized representative.
71-206. Temporary Variances.
A. Petition for Temporary Variance. Any employer, or class of employers, desiring a variance from a standard, or portion thereof may file a written petition containing the information specified in paragraph B of this regulation with the Commissioner, Columbia, South Carolina.
B. Contents for Temporary Variance. A petition filed pursuant to paragraph A of this regulation shall include:
(1) The name and address of the petitioner;
(2) the address of the place or places of employment involved;
(3) a specification of the standard or portion thereof from which the petitioner seeks a variance;
(4) a representation by the petitioner, supported by representations from qualified persons having first-hand knowledge of the facts represented, that he is unable to comply with the standards or portion thereof by its effective date and detailed statement of the reasons thereof;
(5) a statement of the steps the petitioner has taken or will take with specific dates where appropriate, to protect employees against the hazard covered by the standard;
(6) a statement of when the petitioner expects to be able to comply with the standards and of what steps he has taken and will take, with specific dates where appropriate, to come into compliance with the standard;
(7) a statement of the facts the petitioner proposes to prove:
(a) The petitioner is unable to comply with a standard by its effective date because of unavailability of professional or technical personnel or of materials and equipment needed to come into compliance with the standard or because necessary construction or alternation of facilities cannot be completed by the effective date;
(b) He is taking all available steps to safeguard his employees against the hazards covered by the standard;
(c) He has an effective program for coming into compliance with the standard as quickly as practicable;
(8) Any request for a hearing, as provided in this subarticle;
(9) A statement that the petitioner has informed his affected employees of the application by giving a copy thereof to their authorized representative, posting a statement, giving a summary of the application and specifying where a copy may be examined, at the place or places where notices to employees are normally posted, and by other appropriate means;
(10) A description of how affected employees have been informed of the petition and of their rights to petition the Commissioner for a hearing.
C. Interim Order for Temporary Variances.
(1) Petition. A petition may also be made for an interim order to be effective until a decision is rendered on the petition for the variance filed previously or concurrently. A petition for an interim order may include statements of fact and arguments as to why the order should be granted. The Commissioner may rule ex parte upon the petition for interim order.
(2) Notice of Denial of Petition. If a petition filed pursuant to subparagraph (1) of this regulation is denied, the applicant shall be given prompt notice of the denial, which shall include, or be accompanied by; a brief statement of the grounds therefor.
(3) Notice of the Grant of an Interim Order. If an interim order is granted, a copy of the order shall be served upon the petitioner for the order and other parties and the terms of the order shall be on file in the office of the Commissioner. It shall be a condition of the order that the affected employer shall give notice thereof to affected employees by the same means to be used to inform them of a petition for a variance.
D. Length of Temporary Variances. No temporary variance may be in effect for longer than the period needed by the employer to achieve compliance with the Rule or Regulation or for one year, which ever is shorter, except that such order may be renewed not more than twice (1) so long as the requirements of this paragraph are met and (2) if an application for renewal is filed at least ninety days prior to the expiration date of the order. No interim renewal of an order may remain in effect for longer than 180 days.
71-207. Permanent Variances and other relief under section 41-15-250.
A. Petition for Permanent Variance. Any employer, or class of employers, desiring a variance authorized by Section 41-15-250, South Carolina Code of Laws, may file a written petition containing the information specified in paragraph B of this regulation with the Commissioner of Labor, Department of Labor, Columbia, South Carolina.
B. Contents for Permanent Variances. A petition filed pursuant to paragraph A of this regulation shall include:
(1) The name and address of the petitioner;
(2) The address of the place or places of employment involved;
(3) A description of the conditions, practices, means, methods, operations, or processes used or proposed to be used by the petitioner;
(4) A statement showing how the conditions, practices, means, methods, operations, or processes used or proposed to be used would provide employment and places of employment to employees which are as safe and healthful as those required by the standard for which a variance is sought;
(5) A statement that the petitioner has informed his affected employees of the application by giving a copy thereof to their authorized representative, posting a statement, giving a summary of the application and specifying where a copy may be examined, at the place or places where notices to employees are normally posted, and by other appropriate means;
(6) Any request for a hearing, as provided in this subarticle; and
(7) A description of how employees have been informed of the petition and of their right to petition the Commissioner of Labor for a hearing.
C. Interim Order for Permanent Variances.
(1) Petition. A petition may also be made for an interim order to be effective until a decision is rendered on the petition for the variance filed previously or concurrently. A petition for an interim order may include statements of fact and arguments as to why the order should be granted. The Commissioner may rule ex parte upon the petition.
(2) Notice of Denial of Petition. If a petition filed pursuant to subparagraph 1 of this paragraph is denied, the petitioner shall be given prompt notice of the denial, which shall include, or be accompanied by; a brief statement of the grounds therefor.
(3) Notice of the Grant of an Interim Order. If an interim order is granted, a copy of the order shall be served upon the petitioner for the order and other parties, and the terms of the order shall be on file at the Office of the Commissioner and subject to inspection by interested parties. It shall give notice thereof to affected employees by the same means to be used to inform them of a petition for a variance.
71-208. Limitations, Variations, Tolerances, or Exemptions.
A. Petition. Any person or class of persons desiring a limitation, variation, tolerance, or exemption may file a petition containing the information specified in paragraph B of this regulation with the Commissioner, Department of Labor, Columbia, South Carolina.
B. Contents. A petition filed pursuant to paragraph A of this regulation shall include:
(1) the name and address of the petitioner;
(2) the address of the place or places of employment involved;
(3) a specification of the provision of Rules and Regulations to or from which the petitioner seeks a limitation, variation, tolerance, or exemption;
(4) a representation showing that the limitation, variation, tolerance, or exemption sought is necessary and proper to avoid serious impairment of the national defense or State security;
(5) any request for a hearing, as provided in this subarticle;
(6) a description of how employees have been informed of the petition and of their right to petition the Commissioner for a hearing.
C. Interim Order.
(1) Petition. A petition may also be made for an interim order to be effective until a decision is rendered on the petition for a limitation, variation, tolerance, or exemption filed previously or concurrently. A petition for an interim order may include statements of fact and arguments as to why the order should be granted. The Commissioner may rule ex parte upon this petition.
(2) Notice of Denial of Petition. If a petition filed pursuant to subparagraph (1) of this paragraph is denied, the petitioner shall be given prompt notice of the denial, which shall include, or be accompanied by, a brief statement of the grounds therefor.
(3) Notice of the Grant of an Interim Order. If an interim order is granted, a copy of the order shall be served upon the petitioner for the order and other parties, and the terms of the order shall be on file in the office of the Commissioner. It shall be a condition of the order that the affected employer shall give notice thereof to affected employees by the same means to be used to inform them of a petition for a variance.
71-209. Modification, Revocation, and Renewal of Rules or Order.
A. Modification or Revocation. An affected employer or an affected employee may apply in writing to the Commissioner for a modification or revocation of a rule or order issued under this subarticle. The petition shall contain:
(1) the name and address of the petitioner;
(2) a description of the relief which is sought;
(3) a statement setting forth with particularity the grounds for relief;
(4) if the petitioner is an employer, a certification that the petitioner has informed his affected employees of the petition by:
(a) giving a copy thereof to their authorized representative; and
(b) posting at the place or places where notices to employees are normally posted, a statement giving a summary of the application and specifying where a copy of the full petition may be examined (or, in lieu of the summary, posting a copy of the petition);
(5) if the petitioner is an affected employee, a certification that a copy of the petition has been furnished to the employer;
(6) any request for a hearing as provided in this subarticle, R. 71-218;
(7) the Commissioner may on his own motion proceed to modify or revoke a rule or order issued under this subarticle. In such event a copy shall be placed on file in the office of the Commissioner, Columbia, South Carolina, and the Commissioner shall publish in at least one newspaper with general circulation, a notice of his intentions, affording interested persons an opportunity to submit written or oral evidence, testimony or arguments regarding the proposal and informing them of their right to request a hearing, and shall take such action as may be appropriate to give actual notice to affected employees; and
(8) any request for a hearing shall include a clear and concise statement of:
(a) how the proposed modification or revocation would affect the petitioning party; and
(b) what the petitioning party would seek to show on the subjects or issues involved.
B. Renewal. Any final rule or order issued under paragraph A of this regulation may be renewed or extended in the manner prescribed for its issuance.
71-210. Action on Petitions.
A. Defective Petitions.
(1) If a petition filed pursuant to this subarticle does not conform to the applicable regulation, the Commissioner may deny the petition.
(2) Prompt notice of the denial of a petition shall be given to the petitioner.
(3) A notice of denial shall include, or be accompanied by, a brief statement of the grounds for the denial.
(4) A denial of a petition due to a defect shall not preclude the filing of another petition.
B. Adequate Petitions.
(1) If a petition has not been denied pursuant to paragraph A of this regulation, the Commissioner shall give proper notice of the filing of the petition.
(2) A notice of the filing of a petition shall include:
(a) the terms, or accurate summary, of the petition;
(b) a reference to the subarticle and regulation of the Rules and Regulations under which the petition has been filed;
(c) an invitation to interested persons to submit within a stated period of time written evidence, testimony or arguments regarding the petition; and
(d) information to affected employers or employees of any right to request a hearing on the petition.
71-211. Request for Hearing on Petition.
A. Request for Hearing. Within fifteen (15) days of the notification of the filing of a petition, any affected employer or employee may file with the Commissioner a written request for a hearing.
B. Contents of a Request for a Hearing. A request for a hearing filed pursuant to paragraph A of this regulation shall include:
(1) a concise statement of facts showing how the employer or employee would be affected by the relief applied for;
(2) a specification of any statement or representation in the petition which is denied, and a concise summary of the evidence that would be adduced in support of each denial; and
(3) any views or arguments on any issue of fact or law presented.
C. Nothing contained herein shall preclude the request for a hearing being incorporated into and being made a part of the petition.
71-212. Consolidation of Proceedings.
The Commissioner on his own motion or that of any party may consolidate two or more proceedings which involve the same or closely related issues.
71-213. Notice of Hearing.
A. Service. Upon request for a hearing as provided in this subarticle, or upon his own initiative, the Commissioner shall serve, or caused to be served, a reasonable notice of hearing.
B. Contents of Notice. A notice of hearing served under paragraph A of this section shall include:
(1) The date, time and place of the hearing.
(2) The legal authority under which the hearing is to be held.
(3) A specification of issues of fact and law.
71-214. Manner of Service.
Service of any document upon any party may be made by personal delivery of, or by certified mail, a copy of the document to the last known address of the party. The person serving the document shall certify to the manner and the date of the service.
71-215. Prehearing Conference.
A. Convening a Conference. Upon his own motion or the motion of a party, the Commissioner may direct the parties or their counsel to meet with him for a conference to consider:
(1) Simplification of issues;
(2) Necessity or desirability of amendments to documents for purposes of clarification, or limitation;
(3) Stipulations, admissions of fact, and of contents and authenticity of documents;
(4) Limitation of the number of parties and of expert witnesses; and
(5) Such other matters as may tend to expedite the disposition of the proceeding, and to assure a just conclusion thereof.
B. Records of Conference. The Commissioner shall make an order which recites the action taken at the conference, the amendments allowed to any documents which have been filed, and the agreements made between the parties as to any of the matters considered, and which limits the issues for hearing to those disposed of by admissions or agreements; and such order when entered controls the subsequent course of the hearing, unless modified at the hearing, to prevent manifest injustice.
71-216. Consent Findings and Rules or Orders.
A. General. At any time before the reception of evidence in any hearing, or during any hearing a reasonable opportunity may be afforded to permit negotiation by the parties of any agreement containing consent findings and a rule or order disposing of the whole or any part of the proceeding. The allowance of such opportunity and the duration thereof shall be in the discretion of the Commissioner, after consideration of the nature of the proceeding, the requirements of the public interest, the representations of the parties, and the probability of an agreement which will result in a just disposition of the issues involved.
B. Contents. Any agreement containing consent findings and a rule or order disposing of a proceeding shall also provide:
(1) The rule or order shall have the same force and effect as if made after a full hearing;
(2) That the entire record on which any rule or order may be based shall consist solely of the petition and the agreement;
(3) A waiver of any further procedural steps before the Commissioner, and
(4) A waiver of any right to challenge or contest the validity of the findings and or the rules or order made in accordance with the agreement.
C. Submission. On or before the expiration of the time granted for negotiations, the parties or their counsel may:
(1) Submit the proposed agreement to the Commissioner for his consideration; or
(2) Inform the Commissioner that agreement cannot be reached.
D. Disposition. In the event an agreement containing consent findings and a rule or order is submitted within the time allowed therefor, the Commissioner may accept such agreement by issuing his decision based upon the agreed findings.
71-217. Discovery.
A. Depositions.
(1) For reasons of unavailability or for other good cause shown, the testimony of any witness may be taken by deposition. Depositions may be taken orally or upon written interrogatories before any person designated by the Commissioner and having power to administer oaths.
(2) Application. Any party desiring to take the deposition of a witness may make application in writing to the Commissioner setting forth:
(a) the reasons why such deposition should be taken;
(b) the time when, the place where, and the name and post office address of the person before whom the deposition is taken;
(c) the name and address of each witness; and
(d) the subject matter concerning which each witness is expected to testify.
(3) Notice. Such notice as the Commissioner may order shall be given by the party taking the deposition to every other party.
(4) Taking and Receiving in Evidence. Each witness testifying upon deposition shall be sworn, and the parties not calling him shall have the right to cross-examine him. The questions propounded and the answers thereto, together with all objections made, shall be reduced to writing, read to the witness, subscribed by him, and certified by the officer before whom the deposition is taken. Thereafter, the officer shall seal the deposition, with two copies thereof, in an envelope and mail same by registered mail to the Commissioner. Subject to such objections to the questions and answers as were noted at the time of taking the deposition and would be valid were the witness personally present and testifying, such deposition may be read and offered in evidence by the party taking it as against any party who was present, represented at the taking of the deposition, or who had due notice thereof. No part of a deposition shall be admitted in evidence unless there is a showing that the reasons for the taking of the deposition in the first instance existed at the time of hearing.
B. Other Discovery.
Whenever appropriate to a just disposition of any issue in a hearing, the Commissioner may allow discovery by any other appropriate procedure, such as by written interrogatories upon a party, production of documents by a party, or by entry for inspection of the employment or place of employment involved.
71-218. Hearings.
A. Order of Proceeding. Except as may be ordered otherwise by the Commissioner, the party petitioning for relief shall proceed first at a hearing.
B. Burden of Proof. The petitioner shall have the burden of proof.
C. Evidence.
(1) Admissibility-A party shall be entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. Any oral or documentary evidence may be received, but the Commissioner shall exclude evidence which is irrelevant, immaterial, or unduly repetitious.
(2) Testimony of Witnesses-The testimony of a witness shall be upon oath or affirmation administered by the Commissioner.
(3) Objections-If a party objects to the admission or rejection of any evidence, or to the limitation of the scope of any examination or cross-examination, or to the failure to limit such scope, he shall state briefly the grounds for such objection. Rulings on all objections shall appear in the record. Only objections made before the Commissioner may be relied upon subsequently in a proceeding.
(4) Exceptions-Formal exception to an adverse ruling is not required.
D. Judicial Notice. Judicial notice may be taken of any material fact not appearing in evidence in the record. Provided, that the parties shall be given adequate notice, at the hearing or by reference in the Commissioner's decision, of the matters so noticed, and shall be given adequate opportunity to show the contrary.
E. Transcript. Hearings shall be stenographically reported. Copies of the transcript may be obtained by the parties upon written application filed with the reporter, and upon the payment of fees at the rate provided in the agreement with the reporter.
71-219. Decisions of the Commissioner.
A. Within a reasonable time, the Commissioner shall make and serve upon each party his decision, which shall become final upon the 20th day after service thereof, unless exceptions are filed thereto, as provided in R. 71-220. The decision of the Commissioner shall include:
(1) A statement of findings and conclusions, with reasons and bases therefor, upon each material issue of fact, law or discretion presented on the record, and
(2) The appropriate rule, order, relief, or denial thereof.
The decision of the Commissioner shall be based upon a consideration of the whole record and shall state all facts officially noticed and relied upon. It shall be made on the basis of a preponderance of reliable and probative evidence.
71-220. Exceptions.
Within twenty (20) days after service of a decision of the Commissioner, any party may file with the Commissioner written exceptions thereto with supporting reasons. Such exceptions shall refer to the specific findings of fact, conclusions of law, or terms of the rule or order excepted to, the specific pages of transcript relevant to the suggestions, and shall suggest corrected findings of fact, conclusions of law, or terms of the rule or order. Upon receipt of any exceptions, the Commissioner shall fix a time for filing any objections to the exceptions and any supporting reasons. Nothing contained in this regulation shall preclude any grieved party from seeking relief in any court of competent jurisdiction.
71-221. Public Notice of Petition for a Variance and Interim Order.
The Commissioner of Labor will give notice in at least one newspaper with general circulation in the State containing the following information:
A. Variance Request.
(1) Name of the Company petitioning for the variance.
(2) The specific location of the facility directly affected by the Petition.
(3) The specific standard from which a variance is requested.
(4) That a copy of the petition will be made available for inspection and copying upon request at the Office of the Commissioner of Labor, Columbia, South Carolina.
(5) That interested persons, including employers and employees are invited to submit data, views, or arguments within 20 days following the date of the publication of notice.
(6) That employers and employees who believe they would be affected by a grant or denial of the variance may request a hearing on the petition for a variance within 20 days after the publication of the notice.
(7) A general description of the reason or reasons for the variance request.
B. Interim Order.
A brief description of the interim order issued by the Commissioner of Labor.
C. Decisions of the Commissioner.
A statement will be included in the notice that the decision of the Commissioner will be available in the Office of the Commissioner for public inspection to any interested person.
71-222. Variances from Recordkeeping Requirements.
The Commissioner of Labor will not entertain an application for a variance from a Recordkeeping Requirement. Any request so received by the Commissioner will be transmitted to the Secretary of Labor for his action. The State of South Carolina will honor any variance granted by the Secretary of Labor.
71-223. Variances Granted by the Secretary of Labor.
The Commissioner of Labor will honor and give full faith and credit to any temporary or permanent variance from an occupational safety and health standard which has or may be granted by the Secretary of Labor. In order that such variance be honored by the Commissioner, it is and will be incumbent upon the employer to file the final rule or order of the Secretary of Labor with the Commissioner of Labor at his office in Columbia, South Carolina.
SUBARTICLE 3.
RECORDING AND REPORTING OCCUPATIONAL INJURIES AND ILLNESSES
The purpose of this rule (Subarticle 3) is to require employers to record and report work-related fatalities, injuries and illnesses.
Note to 71-300: Recording or reporting a work-related injury, illness, or fatality does not mean that the employer or employee was at fault, that an OSHA rule has been violated, or that the employee is eligible for workers compensation or other benefits.
(Cross Reference: 1904.0)
SUBPART B. SCOPE
Note to Subpart B: All employers covered by the Occupational Safety and Health Act (OSH Act) are covered by these Subarticle 3 regulations. However, most employers do not have to keep OSHA injury and illness records unless OSHA or the Bureau of Labor Statistics (BLS) informs them in writing that they must keep records. For example, employers with 10 or fewer employees and business establishments in certain industry classifications are partially exempt from keeping OSHA injury and illness records.
71-301. Partial exemption for employers with 10 or fewer employees.
(a) Basic requirement
(1) If your company had ten (10) or fewer employees at all times during the last calendar year, you do not need to keep OSHA injury and illness records unless OSHA or the BLS informs you in writing that you must keep records under 71-342. However, as required by 71-339, all employers covered by the OSH Act must report to OSHA any workplace incident that results in a fatality or the hospitalization 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 records unless your establishment is classified as a partially exempt industry under 71-302.
(b) Implementation.
(1) Is the partial exemption for size based on the size of my entire company or on the size of an individual business establishment? The partial exemption for size is based on the number of employees in the entire company.
(2) How do I determine the size of my company to find out if I qualify for the partial exemption for size? To determine if you are exempt because of size, you need to determine your company's peak employment during the last calendar year. If you had no more than ten 10 employees at any time in the last calendar year, your company qualifies for the partial exemption for size.
(3) Does the partial exemption for size apply to public sector [State of South Carolina and any political subdivision thereof]? No, the above exemption of not more than ten (10) employees does not apply to employers in the public sector.
(Cross Reference: 1904.1)
71-302. Partial exemptions for establishments in certain industries.
(a) Basic requirement.
(1) If your business establishment is classified in a specific low hazard retail, service, finance, insurance, or real estate industry listed in Appendix A to this Subpart B, you do not need to keep OSHA injury and illness records unless the government asks you to keep the records under 71-342. However, all employers must report to OSHA any workplace incident that results in a fatality or the hospitalization of three or more employees (see 71-339).
(2) If one or more of your company's establishments are classified in a non-exempt industry, you must keep OSHA injury and illness records for all of such establishments unless your company is partially exempted because of size under 71-301.
(b) Implementation:
(1) Does the partial industry classification exemption apply only to business establishments in the retail, services, finance, insurance, or real estate industries (SICs 52-89)? Yes, business establishments classified in agriculture; mining; construction; manufacturing; transportation; communication, electric, gas and sanitary services; or wholesale trade are not eligible for the partial industry classification exemption.
(2) Is the partial industry classification exemption based on the industry classification of my entire company or on the classification of individual business establishments operated by my company? The partial industry classification exemption applies to individual business establishments. If a company has several business establishments engaged in different classes of business activities, some of the company's establishments may be required to keep records, while others may be exempt.
(3) How do I determine the Standard Industrial Classification code for my company or for individual establishments? You determine your Standard Industrial Classification (SIC) code by using the Standard Industrial Classification Manual, Executive Office of the President, Office of Management and Budget. You may contact your nearest OSHA office or State agency for help in determining your SIC.
(4) Does the partial industry classification exemption apply to public sector [State of South Carolina and any political subdivision thereof]? No, the above exemption applies only to establishments in the private sector. The exemption does not apply to the State of South Carolina or any political subdivisions thereof.
(Cross Reference: 1904.2)
71-303. Keeping records for more than one agency.
If you create records to comply with another government agency's injury and illness recordkeeping requirements, OSHA will consider those records as meeting OSHA's Subarticle 3 recordkeeping requirements if OSHA accepts the other agency's records under a memorandum of understanding with that agency, or if the other agency's records contain the same information as this Subarticle 3 requires you to record. you may contact your nearest OSHA office or State agency for help in determining whether your records meet OSHA's requirements.
NON-MANDATORY APPENDIX A
TO SUBPART B--PARTIALLY EXEMPT INDUSTRIES
Employers are not required to keep OSHA injury and illness records for any establishment classified in the following Standard Industrial Classification (SIC) codes, unless they are asked in writing to do so by OSHA, the Bureau of Labor Statistics (BLS), or a state agency operating under the authority of OSHA or the BLS. All employers including those partially exempted by reason of company size or industry classification must report to OSHA any workplace incident that results in a fatality or the hospitalization of three or more employees (see 71-339).
SUBPART C. RECORDKEEPING FORMS AND RECORDING CRITERIA
Note to Subpart C: This Subpart describes the work-related injuries and illnesses that an employer must enter into the OSHA records and explains the OSHA forms that employers must use to record work-related fatalities, injuries, and illnesses.
71-304. Recording criteria.
(a) Basic requirement. Each employer required by this Part to keep records of fatalities, injuries, and illnesses must record 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 71-307 or the application to specific cases of 71-308 through 71-312.
(b) Implementation. (1) What sections of this rule describe recording criteria for recording work-related injuries and illnesses? The table below indicates which sections of the rule address each topic.
(i) Determination of work-relatedness. See 71-305.
(ii) Determination of a new case. See 71-306.
(iii) General recording criteria. See 71-307.
(iv) Additional criteria. (Needlestick and sharps injury cases, tuberculosis cases, hearing loss cases, medical removal cases, and musculoskeletal disorder cases). See 71-308 through 71-312.
(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 involved in making this determination.
(Cross Reference 1904.4)
71-305. 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 environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in 71-305(b)(2) specifically applies.
(b) Implementation. (1) What is the "work environment"? OSHA defines the work environment as "the establishment and other locations where one or more employees are working or are present as a condition of their employment. The work environment includes not only physical location, but also the equipment or materials used by the employee during the course of his or her work."
(2) Are there situations where an injury or illness occurs in the work environment and is not considered work-related? Yes, an injury or illness occurring in the work environment that falls under one of the following exceptions is not work-related, and therefore is not recordable.
(3) How do I handle a case if it is not obvious whether the precipitating event or exposure occurred in the work environment or occurred away from work? In these situations, you must evaluate the employee's work duties and environment to decide whether or not one or more events or exposures in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing condition.
(4) How do I know if an event or exposure in the work environment "significantly aggravated" a preexisting injury or illness? A preexisting injury or illness has been significantly aggravated, for purposes of OSHA injury and illness recordkeeping, when an event or exposure in the work environment results in any of the following:
(i) Death, provided that the preexisting injury or illness would likely not have resulted in death but for the occupational event or exposure.
(ii) Loss of consciousness, provided that the preexisting injury or illness would likely not have resulted in loss of consciousness but for the occupational event or exposure.
(iii) One or more days away from work, or days of restricted work, or days of job transfer that otherwise would not have occurred but for the occupational event or exposure.
(iv) Medical treatment in a case where no medical treatment was needed for the injury or illness before the workplace event or exposure, or a change in medical treatment was necessitated by the workplace event or exposure.
(5) Which injuries and illness are considered pre-existing conditions? An injury or illness is a preexisting condition if it resulted solely from a non-work-related event or exposure that occurred outside the work environment.
(6) How do I decide whether and injury or illness is work-related if the employee is on travel status at the time the injury or illness occurs? Injuries or illnesses that occur while an employee is on travel status are work-related if, at the time of the injury or illness, the employee was engaged in work activities "in the interest of the employer." Examples of such activities include travel to and from customer contacts, conducting job tasks, and entertaining or being entertained to transact, discuss, or promote business (work-related entertainment includes only entertainment activities being engaged in at the direction of the employer). Injuries or illnesses that occur when the employee is on travel status do not have to be recorded if they meet one of the exceptions listed below.
(7) How do I decide if a case is work-related when the employee is working at home? Injuries and illnesses that occur while an employee is working at home, including work in a home office, will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting. For example, if an employee drops a box of work documents and injures his or her foot, the case is considered work-related. If an employee's fingernail is punctured by a needle from a sewing machine used to perform garment work at home, becomes infected and requires medical treatment, the injury is considered work-related. If an employee is injured because he or she trips on the family dog while rushing to answer a work phone call, the case is not considered work-related. If an employee working at home is electrocuted because of faulty home wiring, the injury is not considered work-related.
(Cross Reference 1904.5)
71-306. Determination of new cases.
(a) Basic requirement. You must consider an injury or illness to be a "new case" if:
(1) The employee has not previously experienced a recorded injury or illness of the same type that affects the same part of the body, or
(2) The employee previously experienced a recorded injury or illness of the same type that affected the same part of the body but had recovered completely (all signs and symptoms had disappeared) from the previous injury or illness and an event or exposure in the work environment caused the signs or symptoms to reappear.
(b) Implementation.
(1) When an employee experiences the signs or symptoms of a chronic work-related illness, do I need to consider each recurrence of signs or symptoms to be a new case? No, for occupational illnesses where the signs or symptoms may recur or continue in the absence of an exposure in the workplace, the case must only be recorded once. Examples may include occupational cancer, asbestosis, byssinosis and silicosis.
(2) When an employee experiences the signs or symptoms of an injury or illness as a result of an event or exposure in the workplace, such as an episode of occupational asthma, must I treat the episode as a new case? Yes, because the episode or recurrence was caused by an event or exposure in the workplace, the incident must be treated as a new case.
(3) May I rely on a physician or other licensed health care professional to determine whether a case is a new case or a recurrence of an old case? You are not required to seek the advice of a physician or other licensed health care professional. However, if you do seek such advice, you must follow the physician or other licensed health care professional's recommendation about whether the case is a new case or a recurrence. If you receive recommendations from two or more physicians or other licensed health care professionals, you must make a decision as to which recommendation is the most authoritative (best documented, best reasoned, or most authoritative), and record the case based upon that recommendation.
(Cross Reference 1904.6)
71-307. General recording criteria.
(a) Basic requirement. You must consider an injury or illness to meet the general recording criteria, and therefore to be recordable, if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness. You must also consider a case to meet the general recording criteria if it involves a significant injury or illness diagnosed by a physician or other licensed health care professional, even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.
(b) Implementation. (1) How do I decide if a case meets one or more of the general recording criteria? A work-related injury or illness must be recorded if it results in one or more of the following:
(i) Death. See 71-307(b)(2).
(ii) Days away from work. See 71-307(b)(3).
(iii) Restricted work or transfer to another job. See 71-307(b)(4).
(iv) Medical treatment beyond first aid. See 71-307(b)(5).
(v) Loss of consciousness. See 71-307(b)(6).
(vi) A significant injury or illness diagnosed by a physician or other licensed health care professional. See 71-307(b)(7).
(2) How do I record a work-related injury or illness that results in the employee's death? You must record an injury or illness that results in death by entering a check mark on the OSHA 300 Log in the space for cases resulting in death. You must also report any work-related fatality to OSHA within eight (8) hours, as required by 71-339.
(3) How do I record a work-related injury or illness that results in days away from work? When an injury or illness involves one or more days away from work, you must record the injury or illness on the OSHA 300 Log with a check mark in the space for cases involving days away and an entry of the number of calendar days away from work in the number of days column. If the employee is out for an extended period of time, you must enter an estimate of the days that the employee will be away, and update the day count when the actual number of days is known.
(i) Do I count the day on which the injury occurred or the illness began? No, you begin counting days away on the day after the injury occurred or the illness began.
(ii) How do I record an injury or illness when a physician or other licensed health care professional recommends that the worker stay at home but the employee comes to work anyway? You must record these injuries and illnesses on the OSHA 300 Log using the check box for cases with days away from work and enter the number of calendar days away recommended by the physician or other licensed health care professional. If a physician or other licensed health care professional recommends days away, you should encourage your employee to follow that recommendation. However, the days away must be recorded whether the injured or ill employee follows the physician or licensed health care professional's recommendation or not. If you receive recommendations from two or more physicians or other licensed health care professionals, you may make a decision as to which recommendation is the most authoritative, and record the case based upon that recommendation.
(iii) How do I handle a case when a physician or other licensed health care professional recommends that the worker return to work but the employee stays at home anyway? In this situation, you must end the count of days away from work on the date the physician or other licensed health care professional recommends that the employee return to work.
(iv) How do I count weekends, holidays, or other days the employee would not have worked anyway? You must count the number of calendar days the employee was unable to work as a result of the injury or illness, regardless of whether or not the employee was scheduled to work on those day(s). Weekend day, holidays, vacation days or other days off are included in the total number of days recorded if the employee would not have been able to work on those days because of work-related injury or illness.
(v) How do I record a case in which a worker is injured or becomes ill on a Friday and reports to work on a Monday, and was not scheduled to work on the weekend? You need to record this case only if you receive information from a physician or other licensed health care professional indicating that the employee should not have worked, or should have performed only restricted work, during the weekend. If so, you must record the injury or illness as a case with days away from work or restricted work, and enter the day counts, as appropriate.
(vi) How do I record a case in which a worker is injured or becomes ill on the day before scheduled time off such as a holiday, a planned vacation or a temporary plant closing? You need to record a case of this type only if you receive information from a physician or other licensed health care professional indicating that the employee should not have worked, or should have performed only restricted work, during the scheduled time off. If so, you must record the injury or illness as a case with days away from work or restricted work, and enter the day counts, as appropriate.
(vii) Is there a limit to the number of days away from work I must count? Yes, you may "cap" the total days away at 180 calendar days. You are not required to keep track of the number of calendar days away from work if the injury or illness resulted in more than 180 calendar days away from work and/or days of job transfer or restriction. In such a case, entering 180 in the total days away column will be considered adequate.
(viii) May I stop counting days if and employee who is away from work because of an injury or illness retires or leaves my company? Yes, if the employee leaves your company for some reason unrelated to the injury or illness, such as retirement, a plant closing, or to take another job, you may stop counting days away from work or days of restriction/job transfer. If the employee leaves your company because of the injury or illness, you must estimate the total number of days away or days of restriction/job transfer and enter the day count on the 300 Log.
(ix) If a case occurs in one year but results in days away during the next calendar year, do I record the case in both years? No, you only record the injury or illness once. You must enter the number of calendar days away for the injury or illness on the OSHA 300 Log for the year in which the injury or illness occurred. If the employee is still away from work because of the injury or illness when you prepare the annual summary, estimate the total number of calendar days you expect the employee to be away from work, use this number to calculate the total for the annual summary, and then update the initial log entry later when the day count is known or reaches the 180-day cap.
(4) How do I record a work-related injury or illness that results in restricted work or job transfer? When an injury or illness involves restricted work or job transfer but does not involve death or days away from work, you must record the injury or illness on the OSHA 300 Log by placing a check mark in the space for job transfer or restriction and an entry of the number of restricted or transferred days in the restricted work days column.
(i) How do I decide if the injury or illness resulted in restricted work? Restricted work occurs when, as the result of a work-related injury or illness:
(A) You keep the employee from performing one or more of the routine functions of his or her job, or from working the full workday that he or she would otherwise have been scheduled to work; or
(B) A physician or other licensed health care professional recommends that the employee not perform one or more of the routine functions of his or her job, or not work the full workday that he or she would otherwise have been scheduled to work.
(ii) What is meant by "routine functions"? For recordkeeping purposes, an employee's routine functions are those work activities the employee regularly performs at least once per week.
(iii) Do I have to record restricted work or job transfer if it applies only to the day on which the injury occurred or the illness began? No, you do not have to record restricted work or job transfers if you, or the physician or other licensed health care professional, impose the restriction or transfer only for the day on which the injury occurred or the illness began.
(iv) If you or a physician or other licensed health care professional recommends a work restriction, is the injury or illness automatically recordable as a "restricted work" case? No, a recommended work restriction is recordable only if it affects one or more of the employee's routine job functions. To determine whether this is the case, you must evaluate the restriction in light of the routine functions of the injured or ill employee's job. If the restriction from you or the physician or other licensed health care professional keeps the employee from performing one or more of his or her routine job functions, or from working the full workday the injured or ill employee would otherwise have worked, the employee's work has been restricted and you must record the case.
(v) How do I record a case where the worker works only for a partial work shift because of a work-related injury or illness? A partial day of work is recorded as a day of job transfer, or restriction for recordkeeping purposes, except for the day on which the injury occurred or the illness began.
(vi) If the injured or ill worker produces fewer goods or services than he or she would have produced prior to the injury or illness but otherwise performs all of the routine functions of his or her work, is the case considered a restricted work case? No, the case is considered restricted work only if the worker does not perform all of the routine functions of his or her job or does not work the full shift that he or she would otherwise have worked.
(vii) How do I handle vague restrictions from a physician or other licensed health care professional, such as that the employee engage only in "light duty" or "take it easy for a week"? If you are not clear about the physician or other licensed health care professional's recommendation, you may ask that person whether the employee can do all of his or her routine job functions and work all of his or her normally assigned work shift. If the answer to both of these questions is "Yes," then the case does not involve a work restriction and does not have to be recorded as such. If the answer to one or both of these questions is "No," the case involves restricted work and must be recorded as a restricted work case. If you are unable to obtain this additional information from the physician or other licensed health care professional that recommended the restriction, record the injury or illness as a case involving restricted work.
(viii) What do I do if a physician or other licensed health care professional recommends a job restriction meeting OSHA's definition, but the employee does all of his or her routine job functions anyway? You must record the injury or illness on the OSHA 300 Log as a restricted work case. If a physician or other licensed health care professional recommends a job restriction, you should ensure that the employee complies with that restriction. If you receive recommendations from two or more physicians or other licensed health care professionals, you may make a decision as to which recommendation is the most authoritative, and record the case based upon that recommendation.
(ix) How do I decide if an injury or illness involved a transfer to another job? If you assign an injured or ill employee to a job other than his or her regular job for part of the day, the case involves transfer to another job.
Note: This does not include the day on which the injury or illness occurred.
(x) Are transfers to another job recorded in the same way as restricted work cases? Yes, both job transfer and restricted work cases are recorded in the same box on the OSHA 300 Log. For example, if you assign, or a physician or other licensed health care professional recommends that you assign, an injured or ill worker to his or her routine job duties for part of the day and to another job for the rest of the day, the injury or illness involves a job transfer. You must record an injury or illness that involves a job transfer by placing a check in the box for job transfer.
(xi) How do I count days of job transfer or restriction? You count days of job transfer or restriction in the same way you count days away from work, using 71-307(b)(3)(i) to (viii), above. The only difference is that, if you permanently assign the injured or ill employee to a job that has been modified or permanently changed in a manner that eliminates the routine functions the employee was restricted from performing, you may stop the day count when the modification or change is made permanent. You must count at least one day of restricted work or job transfer for such cases.
(5) How do I record an injury or illness that involves medical treatment beyond first aid? If a work-related injury or illness results in medical treatment beyond first aid, you must record it on the OSHA 300 Log. If the injury or illness did not involve death, one or more days away from work, one or more days of restricted work, or one or more days of job transfer, you enter a check mark in the box for cases where the employee received medical treatment but remained at work and was not transferred or restricted.
(i) What is the definition of medical treatment? "Medical treatment" means the management and care of a patient to combat disease or disorder. For the purposes of Subarticle 3, medical treatment does not include:
(A) Visits to a physician or other licensed health care professional solely for observation or counseling;
(B) The conduct of diagnostic procedures, such as x-rays and blood tests, including the administration of prescription medications used solely for diagnostic purposes (e.g., eye drops to dilate pupils); or
(C) "First aid" as defined in paragraph (b)(5)(ii) of this section.
(ii) What is "first aid"? For the purposes of Subarticle 3, "first aid" means the following:
(A) Using a non-prescription medication at nonprescription strength (for medications available in prescription and non-prescription form, a recommendation by a physician or other licensed health care professional to use a non-prescription medication at prescription strength is considered medical treatment for recordkeeping purposes);
(B) Administering tetanus immunizations (other immunizations, such as Hepatitis B vaccine or rabies vaccine, are considered medical treatment);
(C) Cleaning, flushing or soaking wounds on the surface of the skin;
(D) Using wound coverings such as bandages, Band-AidsTM, gauze pads, etc.; or using butterfly bandages or Steri-StripsTM (other wound closing devices such as sutures, staples, etc., are considered medical treatment);
(E) Using hot or cold therapy;
(F) Using any non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc. (devices with rigid stays or other systems designed to immobilize parts of the body are considered medical treatment for recordkeeping purposes);
(G) Using temporary immobilization devices while transporting an accident victim (e.g., splints, slings, neck collars, back boards, etc.);
(H) Drilling of a fingernail or toenail to relieve pressure, or draining fluid from a blister;
(I) Using eye patches;
(J) Removing foreign bodies from the eye using only irrigation or a cotton swab;
(K) Removing splinters or foreign material from areas other than the eye by irrigation, tweezers, cotton swabs or other simple means;
(L) Using finger guards;
(M) Using massages (physical therapy or chiropractic treatment are considered medical treatment for recordkeeping purposes); or
(N) Drinking fluids for relief of heat stress.
(iii) Are any other procedures included in first aid? No, this is a complete list of all treatments considered first aid for Subarticle 3 purposes.
(iv) Does the professional status of the person providing the treatment have any effect on what is considered first aid or medical treatment? No, OSHA considers the treatment listed in 71-307(b)(5)(ii) of this Part to be first aid regardless of the professional status of the person providing the treatment. Even when these treatments are provided by a physician or other licensed health care professional, they are considered first aid for the purposes of Subarticle 3. Similarly, OSHA considers treatment beyond first aid to be medical treatment even when it is provided by someone other than a physician or other licensed health care professional.
(v) What if a physician or other licensed health care professional recommends medical treatment but the employee does not follow the recommendation? If a physician or other licensed health care professional recommends medical treatment, you should encourage the injured or ill employee to follow that recommendation. However, you must record the case even if the injured or ill employee does not follow the physician or other licensed health care professional's recommendation.
(6) Is every work-related injury or illness case involving a loss of consciousness recordable? Yes, you must record a work-related injury or illness if the worker becomes unconscious, regardless of the length of time the employee remains unconscious.
(7) What is a "significant" diagnosed injury or illness that is recordable under the general criteria even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness? Work-related cases involving cancer, chronic irreversible disease, a fractured or cracked bone, or a punctured eardrum must always be recorded under the general criteria at the time of diagnosis by a physician or other licensed health care professional.
Note to 71-307: OSHA believes that most significant injuries and illnesses will result in one of the criteria listed in 71-307(a): death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness. However, there are some significant injuries, such as a punctured eardrum or fractured toe or rib, for which neither medical treatment nor work restrictions may be recommended. In addition, there are some significant progressive diseases, such as byssinosis, silicosis, and some types of cancer, for which medical treatment or work restrictions may not be recommended at the time of diagnosis but are likely to be recommended as the disease progresses. OSHA believes that cancer, chronic irreversible diseases, fractured or cracked bones, and punctured eardrums are generally considered significant injuries and illnesses, and must be recorded at the initial diagnosis even if medical treatment or work restrictions are not recommended, or are postponed, in a particular case.
(Cross Reference 1904.7)
71-308. Recording criteria for needlestick and sharps injuries.
(a) Basic requirement. You must record all work-related needlestick injuries and cuts from sharp objects that are contaminated with another person's blood or other potentially infectious material (as defined by 29 CFR 1910.1030). You must enter the case on the OSHA 300 Log as an injury. To protect the employee's privacy, you may not enter the employee's name on the OSHA 300 Log (see the requirements for privacy cases in paragraphs, 71-329(b)(6) through 71-329(b)(9)).
(b) Implementation. (1) What does "other potentially infectious material" mean? The term "other potentially infectious materials" is defined in the OSHA Bloodborne Pathogens standard at 1910.1030(b). These materials include:
(i) Human bodily fluids, tissues and organs, and
(ii) Other materials infected with the HIV or hepatitis B (HBV) virus such as laboratory cultures or tissues from experimental animals.
(2) Does this mean that I must record all cuts, lacerations, punctures, and scratches? No, you need to record cuts, lacerations, punctures, and scratches only if they are work-related and involve contamination with another person's blood or other potentially infectious material. If the cut, laceration, or scratch involves a clean object, or a contaminant other than blood or other potentially infectious material, you need to record the case only if it meets one or more of the recording criteria in 71-307.
(3) If record an injury and the employee is later diagnosed with an infectious bloodborne disease, do I need to update the OSHA 300 Log? Yes, you must update the classification of the case on the OSHA 300 Log if the case results in death, days away from work, restricted work, or job transfer. You must also update the description to identify the infectious disease and change the classification of the case from an injury to an illness.
(4) What if one of my employees is splashed or exposed to blood or other potentially infectious material without being cut or scratched? Do I need to record this incident? You need to record such an incident on the OSHA 300 Log as an illness if:
(i) It results in the diagnosis of a bloodborne illness, such as HIV, hepatitis B, or hepatitis C; or
(ii) It meets one or more of the recording criteria in 71-307.
(Cross Reference: 1904.8)
71-309. Recording criteria for cases involving medical removal under OSHA standards.
(a) Basic requirement. If an employee is medically removed under the medical surveillance requirements of an OSHA standard, you must record the case on the OSHA 300 Log.
(b) Implementation. (1) How do I classify medical removal cases on the OSHA 300 Log? You must enter each medical removal case on the OSHA 300 Log as either a case involving days away from work or a case involving restricted work activity, depending on how you decide to comply with the medical removal requirement. If the medical removal is the result of a chemical exposure, you must enter the case on the OSHA 300 Log by checking the "poisoning" column.
(2) Do all of OSHA's standards have medical removal provisions? No, some OSHA standards, such as the standards covering bloodborne pathogens and noise, do not have medical removal provisions. Many OSHA standards that cover specific chemical substances have medical removal provisions. These standards include, but are not limited to lead, cadmium, methylene chloride, formaldehyde, and benzene.
(3) Do I have to record a case where I voluntarily removed the employee from exposure before the medical removal criteria in an OSHA standard is met? No, if the case involves voluntary medical removal before the medical removal levels required by an OSHA standard, you do not need to record the case on the OSHA 300 Log.
(Cross Reference 1904.9)
71-310. Recording criteria for cases involving occupational hearing loss.
(a) Basic requirement.
If an employee's hearing test (audiogram) reveals that the employee has experienced a work-related Standard Threshold Shift (STS) in hearing in one or both ears, and the employee's total hearing level is 25 decibels (dB) or more above audiometric zero (averaged at 2000, 3000, and 4000 Hz) in the same ear(s) as the STS, you must record the case on the OSHA 300 Log.
(b) Implementation.
(1) What is a Standard Threshold Shift? A Standard Threshold Shift, or STS, is defined in the occupational noise exposure standard at 29 CFR 1910.95(g)(10)(i) as a change in hearing threshold, relative to the baseline audiogram for that employee, of an average of 10 decibels (dB) or more at 2000, 3000, and 4000 hertz (Hz) in one or both ears.
(2) How do I evaluate the current audiogram to determine whether an employee has an STS and a 25-dB hearing level?
(i) STS. If the employee has never previously experienced a recordable hearing loss, you must compare the employee's current audiogram with that employee's baseline audiogram. If the employee has previously experienced a recordable hearing loss, you must compare the employee's current audiogram with the employee's revised baseline audiogram (the audiogram reflecting the employee's previous recordable hearing loss case).
(ii) 25-dB loss. Audiometric test results reflect the employee's overall hearing ability in comparison to audiometric zero. Therefore, using the employee/s current audiogram, you must use the average hearing level at 2000, 3000, and 4000 Hz to determine whether or not the employee's total hearing level is 25 dB or more.
(3) May I adjust the current audiogram to reflect the effects of aging on hearing? Yes. When you are determining whether an STS has occurred, you may age adjust the employee's current audiogram results by using Tables F-1 or F-2, as appropriate, in Appendix F of 29 CFR 1910.95. You may not use an age adjustment when determining whether the employee's total hearing level is 25 dB or more above audiometric zero.
(4) Do I have to record the hearing loss if I am going to retest the employee's hearing? No, if you retest the employee's hearing within 30 days of the first test, and the first test does not confirm the recordable STS, you are not required to record the hearing loss case on the OSHA 300 Log. If the test confirms the recordable STS, you must record the hearing loss illness within seven (7) calendar days of the retest. If subsequent audiometric testing performed under the testing requirements of the 1910.95 noise standard indicate that an STS is not persistent, you may erase or line-out the recorded entry.
(5) Are there any special rules for determining whether a hearing loss case is work-related? No. You must use the rules in 71-305 to determine if the hearing loss is work-related. If an event or exposure in the work environment either caused or contributed to the hearing loss, or significantly aggravated a pre-existing hearing loss, you must consider the case to be work related.
(6) If a physician or other licensed health care professional determines the hearing loss is not work-related, do I still need to record the case? If a physician or other licensed health care professional determines that the hearing loss is not work-related or has not been significantly aggravated by occupational noise exposure, you are not required to consider the case work-related or to record the case on the OSHA 300 Log.
(7) How do I complete the 300 Log for a hearing loss case? When you enter a recordable hearing loss case on the OSHA 300 Log, you must check the column for hearing loss. (Note: SCRR 71-310(b)(7) is effective beginning January 1, 2004.)
(Cross Reference: 1904.10)
71-311. Recording criteria for work-related tuberculosis cases.
(a) Basic requirement. If any of your employees has been occupationally exposed to anyone with a known case of active tuberculosis (TB), and that employee subsequently develops a tuberculosis infection, as evidenced by a positive skin test or diagnosis by a physician or other licensed health care professional, you must record the case on the OSHA 300 Log by checking the "respiratory condition" column.
(b) Implementation. (1) Do I have to record, on the Log, a positive TB skin test result obtained at a pre-employment physical? No, you do not have to record it because the employee was not occupationally exposed to a known case of active tuberculosis in your workplace.
(2) May I line-out or erase a recorded TB case if I obtain evidence that the case was not caused by occupational exposure? Yes, you may line-out or erase the case from the Log under the following circumstances:
(i) The worker is living in a household with a person who has been diagnosed with active TB;
(ii) The Public Health Department has identified the worker as a contact of an individual with a case of active TB unrelated to the workplace; or
(iii) A medical investigation shows that the employee's infection was caused by exposure to TB away from work, or proves that the case was not related to the workplace TB exposure.
(Cross Reference: 1904.11)
71-312. Recording criteria for cases involving work-related musculoskeletal disorders.
[Reserved]
71-313 to 71-328. [Reserved]
71-313 to 71-328. [Reserved]
71-313 to 71-328. [Reserved]
71-313 to 71-328. [Reserved]
71-313 to 71-328. [Reserved]
71-313 to 71-328. [Reserved]
71-313 to 71-328. [Reserved]
71-313 to 71-328. [Reserved]
71-313 to 71-328. [Reserved]
71-313 to 71-328. [Reserved]
71-313 to 71-328. [Reserved]
71-313 to 71-328. [Reserved]
71-313 to 71-328. [Reserved]
71-313 to 71-328. [Reserved]
71-313 to 71-328. [Reserved]
71-313 to 71-328. [Reserved]
71-329. Forms.
(a) Basic requirement. You must use OSHA 300, 300-A, and 301 forms, or equivalent forms, for recordable injuries and illnesses. The OSHA 300 form is called the Log of Work-Related Injuries and Illnesses, the 300-A is the Summary of Work-Related Injuries and Illnesses, and the OSHA 301 form is called the Injury and Illness Incident Report.
(b) Implementation. (1) What do I need to do to complete the OSHA 300 Log? You must enter information about your business at the top of the OSHA 300 Log, enter a one or two line description for each recordable injury or illness and summarize this information on the OSHA 300-A at the end of the year.
(2) What do I need to do to complete the OSHA 301 Incident Report? You must complete an OSHA 301 Incident Report form, or an equivalent form, for each recordable injury or illness entered on the OSHA 300 Log.
(3) How quickly must each injury or illness be recorded? You must enter each recordable injury or illness on the OSHA 300 Log and 301 Incident Report within seven [7] calendar days of receiving information that a recordable injury or illness has occurred.
(4) What is an equivalent form? An equivalent form is one that has the same information, is as readable and understandable, and is completed using the same instructions as the OSHA form it replaces. Many employers use an insurance form instead of the OSHA 301 Incident Report, or supplement an insurance form by adding any additional information required by OSHA.
(5) May I keep my records on a computer? Yes, if the computer can produce equivalent forms when they are needed, as described under 71-335 and 71-340; you may keep your records using the computer system.
(6) Are there situations where I do not put the employee's name on the forms for privacy reasons? Yes, if you have a "privacy concern case," you may not enter the employee's name on the OSHA 300 Log. Instead, enter "privacy case" in the space normally used for the employee's name. This will protect the privacy of the injured or ill employee when another employee, a former employee, or an authorized employee representative is provided access to the OSHA 300 Log under 71-335(b)(2). You must keep a separate, confidential list of the case numbers and employee names for your privacy concern cases so you can update the cases and provide the information to the government if asked to do so.
(7) How do I determine if an injury or illness is a privacy concern case? You must consider the following injuries or illnesses to be privacy concern cases:
(i) An injury or illness to an intimate body part or the reproductive system;
(ii) An injury or illness resulting from a sexual assault;
(iii) Mental illness;
(iv) HIV infection, hepatitis, or tuberculosis;
(v) Needlestick injuries and cuts from sharp objects that are contaminated with another person's blood or other potentially infectious material (see 71-308 for definitions); and
(vi) Other illnesses, if the employee voluntarily requests that his or her name not be entered on the log.
(8) May I classify any other types of injuries and illnesses as privacy concern cases? No, this is a complete list of all injuries and illnesses considered privacy concern cases for Subarticle 3 purposes.
(9) If I have removed the employee's name, but still believe that the employee may be identified from the information on the forms, is there anything else that I can do further protect the employee's privacy? Yes, if you have a reasonable basis to believe that information describing the privacy concern case may be personally identifiable even though the employee's name has been omitted, you may use discretion in describing the injury or illness on both the OSHA 300 and 301 forms. You must enter enough information to identify the cause of the incident and the general severity of the injury or illness, but you do not need to include details of an intimate or private nature. For example, a sexual assault case could be described as "injury from assault," or an injury to a reproductive organ could be described as "lower abdominal injury."
(10) What must I do to protect employee privacy if I wish to provide access to the OSHA Forms 300 and 301 to persons other than government representatives, employees, former employees or authorized representatives? If you decide to voluntarily disclose the Forms to persons other than government representatives, employees, former employees or authorized representatives (as required by 71-335 and 71-340), you must remove or hide the employees' names and other personally identifying information, except for the following cases. You may disclose the Forms with personally identifying information only:
(i) to an auditor or consultant hired by the employer to evaluate the safety and health program;
(ii) to the extent necessary for processing a claim for workers' compensation or other insurance benefits; or
(iii) to a public health authority or law enforcement agency for uses and disclosures for which consent, and authorization, or opportunity to agree or object is not required under Department of Health and Human Services Standards for Privacy of Individually Identifiable Health Information, 45 CFR 164.512.
(Cross Reference: 1904.29)
SUBPART D. OTHER OSHA INJURY AND ILLNESS RECORDKEEPING REQUIREMENTS
71-330. Multiple business establishments.
(a) Basic requirement. You must keep a separate OSHA 300 Log for each establishment that is expected to be in operation for one year or longer.
(b) Implementation. (1) Do I need to keep OSHA injury and illness records for short-term establishments (i.e., establishments that will exist for less than a year)? Yes, however, you do not have to keep a separate OSHA 300 Log for each such establishment. You may keep one OSHA 300 Log that covers all of your short-term establishments. You may also include the short-term establishments recordable injuries and illnesses on an OSHA 300 Log that covers short-term establishments for individual company divisions or geographic regions.
(2) May I keep the records for all of my establishments at my headquarters location or at some other central location? Yes, you may keep the records for an establishment at your headquarters or other central location if you can:
(i) Transmit information about the injuries and illnesses from the establishment to the central location within seven (7) calendar days of receiving information that a recordable injury or illness has occurred; and
(ii) Produce and send the records from the central location to the establishment within the time frames required by 71-335 and 71-340 when you are required to provide records to a government representative, employees, former employees or employee representatives.
(3) Some of my employees work at several different locations or do not work at any of my establishments at all. How do I record cases for these employees? You must link each of your employees with one of your establishments, for recordkeeping purposes. You must record the injury and illness on the OSHA 300 Log of the injured or ill employee's establishment or on an OSHA 300 Log that covers that employee's short-term establishment.
(4) How do I record an injury or illness when an employee of one of my establishments is injured or becomes ill while visiting or working at another of my establishments, or while working away from any of my establishments? If the injury or illness occurs at one of your establishments, you must record the injury or illness on the OSHA 300 Log of the establishment at which the injury or illness occurred. If the employee is injured or becomes ill and is not at one of your establishments, you must record the case on the OSHA 300 Log at the establishment at which the employee normally works.
(Cross Reference 1904.30)
71-331. Covered employees.
(a) Basic requirement. You must record on the OSHA 300 Log the recordable injuries and illnesses of all employees on your payroll, whether they are labor, executive, hourly, salary, part-time, seasonal or migrant workers. You also must record the recordable injuries and illnesses that occur to employees who are not on your payroll if you supervise these employees on a day-to-day basis. If your business is organized as a sole proprietorship or partnership, the owner or partners are not considered employees for recordkeeping purposes.
(b) Implementation. (1) If a self-employed person is injured or becomes ill while doing work at my business, do I need to record the injury or illness? No, self-employed individuals are not covered by the OSHA Act or this regulation.
(2) If I obtain employees from a temporary help service, employee leasing service, or personnel supply service, do I have to record an injury or illness occurring to one of those employees? You must record these injuries and illnesses if you supervise these employees on a day-to-day basis.
(3) If an employee in my establishment is a contractor's employee, must I record an injury or illness occurring to that employee? If the contractor's employee is under the day-to-day supervision of the contractor, the contractor is responsible for recording the injury or illness. If you supervise the contractor employee's work on a day-to-day basis, you must record the injury or illness.
(4) Must the personnel supply service, temporary help service, employee leasing service, or contractor also record the injuries or illnesses occurring to temporary, leased or contract employees that I supervise on a day-to-day basis? No, you and the temporary help service, employee leasing service, personnel supply service, or contractor should coordinate your efforts to make sure that each injury and illness is recorded o
