The Occupational Safety and Health Administration (OSHA) released an interpretation letter that addresses when employers are required by OSHA rules to list injuries, illnesses, and deaths caused by violent acts at work on their OSHA logs.
Under OSHA standards, employers are required to keep a record of serious work-related injuries and illnesses. 29 C.F.R. 1904.5(a) provides that an injury or illness must be considered work-related if any event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. It is presumed that those injuries or illness that occur in the work environment are work-related unless they fall within an exception listed under 29 C.F.R. 1904.5(b)(2). This “geographic presumption” encompasses cases where the injury or illness is outside of the employer’s control or not directly related to production. For instance, a construction employee at a site while on the clock who is struck by lightning would fall under the geographic presumption.
29 C.F.R. 1904.5(b)(6) provides that injuries and illnesses that occur to an employee who is traveling are considered work related if the employee is engaged in work activities in the interest of the employer at the time of the injury or illness.
OSHA addressed acts of violence against employees in the workplace during 2001 rulemaking. Commentors were split on whether acts of violence should be reported as not work-related, while still others believed the opposite. Ultimately, OSHA did not exclude recording of injuries and illnesses resulting from violence against employees in the workplace. The underlying rationale is that the employee is in the position they are as a condition of their employment (i.e., at the workplace, work environment, or working in the interest of the employer), and but for being there they would not be subject to the violence, thus satisfying the causal connection.
The letter is in response to tragic circumstances. An employee was on the clock, traveling between two service locations. While sitting at a stoplight, the employee witnessed a four-car collision. The driver that caused the collision got out of the vehicle and shot the employee and stole his vehicle. Unbeknownst to the employee, the perpetrator was in fact on a crime spree. Tragically, the employee was at the wrong place at the wrong time.
The OSHA interpretation letter found that under those circumstances the fatality was reportable. The employee was traveling between calls, which was in the interest of the employer. It mattered not that the injury or illness was outside of the employer’s control, was preventable, or covered by the employer’s safety and health program – it only mattered that the injury or illness was work-related. To note, recording a case means only that an injury or illness has occurred, that it was work-related, and it was not minor. It does not establish fault or indicate violation of an OSHA rule or standard.
Aside from caring for an employee’s well-being, an employer should be compliant with OSHA reporting standards, including reporting all serious injuries or illness timely and appropriately. If you have questions concerning reporting injuries or illnesses to OSHA, or you have been cited for OSHA violations, consultation with an attorney, like those with Kollman & Saucier, is a wise first step.