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National Association of Manufacturers v. Chao
(D.D.C.)
Recordkeeping rule
The NAM filed suit on 3/19/01 against the Secretary of Labor, challenging the new occupational safety and health recordkeeping rule issued by the Clinton Administration on January 19, 2001. While there are significant improvements under the new rule, which was slated to go into effect in 2002, the NAM was concerned that the rule requires manufacturers to report injuries and illnesses that are not work-related, including pre-existing conditions caused by non-work-related activities. The rule also includes in the definition of injuries and illnesses symptoms that are wholly subjective. Other objections include the requirement that standard threshold shifts of 10 dB(A) in hearing are recordable as an illness. On 4/25/01, the NAM requested of Secretary Chao that the litigation and the effective date of the regulation be stayed until January 1, 2003 to allow sufficient time for appropriate review by the new leadership at the Department of Labor. On 7/3/01, the Department published a notice in the Federal Register stating that the rule will go into effect as scheduled on January 1, 2002, except for provisions related to hearing loss and musculoskeletal disorders (see below). The Department filed a motion to dismiss, claiming that the NAM does not have the right to challenge the regulation before an enforcement action is initiated, and we vigorously opposed that motion.
This motion was mooted when the NAM and OSHA agreed on 11/16/01 to a settlement (below). The settlement agreement provides that: OSHA will focus on assistance and not enforcement during the first 120 days, provided the employer is attempting to meet recordkeeping obligations and agrees to bring records into compliance;
A case will be considered work-related only if "an event or exposure in the work environment is a discernible cause of the injury or illness or of a significant aggravation to a pre-existing condition."
A case is not recordable as a restricted work case if an employee experiences minor musculoskeletal discomfort and a health care professional determines that the worker is fully able to perform the job and the employer restricts the employee's work to prevent a more serious condition from developing.
A worker's own report of an injury or illness does not establish the existence of an injury or illness. Instead, the employer must first decide if an injury or illness has occurred, and may refer the employee to a health care professional to help determine whether an injury or illness exists.
Providing oxygen to an employee will not necessarily trigger the recording requirement. "If oxygen is administered as a purely precautionary measure to an employee who does not exhibit any symptoms of an injury or illness, the case is not recordable," the agreement says.
Related Documents:
Settlement Agreement (December 27, 2001)
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