05.31.23

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If a worker has a work-related injury on a Thursday and is told by the physician not to work for three days, how do you count the number of days for OSHA recordkeeping purposes?  Does it matter if the worker was not scheduled to work on the weekend?  Does it matter if the worker is on-call?  Part-time?

Not really.

For OSHA recordkeeping, 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). Weekends days, 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 and illness. This applies to employees who work on a part-time or as needed basis as well as to full time employees.

The only exception to this count: You do NOT count the day of the injury.

Why did OSHA do this?  

The simple reason is that lost days are a measure of severity of an injury. When OSHA is reviewing data, being able to see that  a worker was unable to work for three days tells them the injury was likely more serious than one where the worker didn’t miss any days. For example, if the rules were not written this way, a worker could be injured on a Friday, be told not to work for two days, but, as long as the worker didn’t work weekends, there wouldn’t be any lost time. Alas, OSHA did not write the rules that way, so the case does get recorded and the day counts reflect the seriousness of the injury (i.e., physician’s orders), rather than the worker’s work schedule.

A few last notes:

• If the healthcare provider did not specify a specific time period, you may end the count of days away from work when the employee is capable to return.
• If the physician recommends the worker can return to work, but the worker stays at home anyway, the case does not have to be recorded as days away (reference: Section 1904.7(b)(3)(iii)).
• When an accident happens in one year, but the days away or days restricted continue through to the next year, keep recording the days on the initial case; do not create a new case for the next year.
• If a doctor orders "restricted work," rather than "do not work," but the employer cannot accommodate the restrictions, the days away would be lost workdays, rather than restricted cases. If the employer can accommodate the restrictions, the days are counted as restricted days, rather than lost days.

A worker starts a new job, and develops muscle soreness at the end of the shift. Is this an injury/illness? If so, is it recordable?

The answers are probably and doubtful.

Muscle soreness likely is an "abnormal condition," helping it meet the criteria to be an injury/illness. However, unless it rises to the level of requiring days away, medical treatment beyond first aid, or other recordable criteria, it would not be recordable.

Section 1904.4(a) of OSHA's Recordkeeping regulation provides that each employer who is required to keep occupational injury and illness records must record each case that:

1. Meets the regulation's definition of "injury or illness;"
2. Is work-related;
3. Is a new case and not a continuation of an old case; and
4. Meets one or more or the general recording criteria in section 1904.7 (e.g., days away from work, restricted work or job transfer, medical treatment beyond first aid), or the additional criteria for specific cases found in sections 1904.8 through 1904.11.

A case is recordable only if it meets all of these requirements.  The starting point in decision-making is first determining whether the case meets regulation's definition of "injury or illness."

Section 1904.46 defines "injury or illness" as:

• An injury or illness is an abnormal condition or disorder.  Injuries include cases such as, but not limited to, a cut, fracture, sprain, or amputation.  Illnesses include both acute and chronic illnesses, such as, but not limited to, a skin disease, respiratory disorder, or poisoning. [emphasis added].

Whether muscle soreness resulting from a new work activity is considered an abnormal condition within the definition of injury or illness is tricky.  Although the Recordkeeping regulation broadly defines injury or illness, the definition "capture[s] only those changes that OSHA believes reflect an adverse change in the employee's condition that is of some significance, i.e., that reach the level of an abnormal condition" (66 FR 5916, 6080; 1-19-2001).  For example, cuts or obvious wounds, breathing problems, skin rashes, blood tests with abnormal results, and the like clearly are abnormal conditions.  By contrast, a mere change in mood or experiencing normal end-of-the-day tiredness would not be considered significant changes that rise to the level of abnormal condition.   That said, an abnormal condition need not include objective signs, such as results from laboratory tests or medical evaluations, in order to be considered an injury or illness.  Simple subjective signs, such as an employee's statement that he or she feels pain or other symptoms such as muscle soreness, of and by themselves, would be conclusive in determining that an abnormal condition exists.

OSHA believes this broad definition of injury or illness is appropriate because, as mentioned, determining whether a case meets that definition is just the first step in analyzing whether a case is recordable.  An abnormal condition, such as muscle soreness, is recordable only if it also is work-related, a new case, and meets one or more of the general recording criteria in Section 1904.7 through 1904.11 (66 FR 6079).  Thus, for example, work-related muscle soreness that reaches the level of abnormal condition but does not meet any of the regulation's general recording criteria because the employee did not require days away from work, did not require medical treatment beyond first aid, and is able to fully perform all job functions (albeit at a slower pace) without work restriction or job transfer would not be recordable.

Lets say an employee injures his hand at work. The on-site nurse, who assesses the laceration injury, deems it treatable through the use of non-invasive means (e.g. steri-strips and/or Band-Aids).

After work on the same day, the worker goes to the hospital for another assessment of the injury. The physician at the hospital assesses and decides to suture the wound. 

Can the employer use the nurse's opinion, and not record the incident? Or must the employer go with the more stringent second opinion?

"CONTEMPORANEOUS MEDICAL OPINIONS"

OSHA says that, when making a determination as to how to record a specific work-related injury or illness, an employer may choose to rely on a particular conflicting medical recommendation from a physician or other licensed health care professional, provided the recommendation is contemporaneous to, and more authoritative (best documented, best reasoned or most persuasive) than the other recommendation.

But what is "contemporaneous"?

First,  the physicians involved in the examination of the employee must see the exact same condition. If the employee's condition either improves or worsens between the examinations the concept does not apply. Several criteria must be met to ensure the medical professionals involved are seeing the same condition: 1) Examination of the patient must be in person (i.e. review of documents only cannot be substituted for a physical examination); 2) The examinations must be contemporaneous; 3) The employee was not subject to additional exposures between the examinations; and 4) No medical treatment, restricted work activity, or days away from work occurred between the examinations. 

If any one of these criteria is not met, it is likely the health care professionals are not seeing the same condition. If all of these criteria are met the employer may rely on the most authoritative medical opinion.

It goes against what many employers feel is right, but OSHA considers company-controlled parking lots to be part of the "work environment."

This means the majority of injuries that occur in such parking lots are work related for OSHA recordkeeping purposes.

Combine this with the fact that OSHA doesn't factor clocking in/out, or break time, for recordkeeping purposes, and you've got a situation where nearly all injuries that occur in the company parking lot are work related.

There are two exceptions that can render a parking lot injury not work related.

First, if the injury is the result of a motor vehicle accident during the worker's commute, it's not work related.

Second, if the worker is engaged in a personal task that is outside normal working hours, it's not work related.

But, the more frequent injuries, like slips, trips, and falls in parking lots, are work related. In addition, if the worker slams their finger in a parked car, that's also work related. OSHA has even gone so far as to say an employee sitting in their car during lunch is present in the work environment, and, even if an electrical fault caused the car to catch on fire, subsequent injuries would be work related if occurring in the company parking lot.

Sound crazy? OSHA will admit it's something an employer can't control:

Many circumstances that lead to a recordable work-related injury or illness are “beyond the employer’s control.”  Nevertheless, because such an injury or illness was caused contributed to, or significantly aggravated by an event or exposure at work, it must be recorded on the OSHA 300 Log, provided it meets one or more of the recording criteria in Section 1904.7.   (https://www.osha.gov/laws-regs/standardinterpretations/2007-10-29)

This leads to another issue: no-fault concept. OSHA considers the recordkeeping requirements to be based on a no-fault concept, meaning just because an injury is recordable doesn't mean the employer failed to take necessary precautions to prevent the injury or control a hazard.  While this may be true, obviously employers suffer from recording injuries such as these, as they do impact injury rates, which can be tied to contract bidding, OSHA emphasis programs, and other consequences.

But, ideally, injuries from such things as a car catching on fire during lunch break, will be infrequent occurrences that don't impact injury rates substantially. The other types of parking lot injuries, like slips, may be more frequent, but are to some extent under the employer's control. For example, an employer can reduce slips by having a plan in place to clear surfaces of snow and ice during winter, and find and fix potholes and the like.

And, cell phones. Remind workers to pay attention to the walking surface!

Scenario: An mployee working for a construction company is paid to work from 7:00 am to 12:00 pm and 12:30 pm to 5:30 pm as bound by a contract that applies to craft employees working at this work site. At 12:20 pm (while off the clock), the employee exits a restroom and falls awkwardly, causing a deep laceration which requires sutures to close.

Question: Does this case fall within the exception in Section 1904.5(b)(2)(v) for injuries and illnesses that are solely the result of employees doing personal tasks (unrelated to their employment) at the establishment outside of their assigned work hours.

Historically, OSHA has not considered the employee's pay status at the time of the incident or the fact that he or she punches in and out with a time clock (or signing in and out) to be relevant when determining whether a case is work-related.  Instead, the focus has been on whether the event or exposure took place when the employee was present in the work environment as a condition of employment.

In this scenario, the exception in Section 1904.5(b)(2)(v) would not apply because the injury occurred during the employee's normal work schedule (lunch break). The exception in Section 1904.5(b)(2)(v) only applies if an injury or illness occurs when the employee is conducting personal tasks while present in the work environment at a time either (1) before the start of the normal work schedule, or (2) after the normal work schedule has ended. In other words, the exception does not apply to injuries and illnesses that occur during breaks (either formal or informal) in the employee's normal work schedule. 

Therefore, the case in this scenario is work-related and must be recorded because it meets the general recording criteria in Section 1904.7 (the injury required sutures).

Note: If the worker had left the work environment for lunch, it likely would not be work-related because ... it wouldn't be within the work environment.

Based on OSHA interpretation: Clarification of assigned working hours when recording work-related injuries/illnesses, Feb. 26, 2010