Injury Management
Exploring the Complexities of OSHA Recordkeeping and Workers’ Compensation
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Editor’s note: This article is intended as an introduction to OSHA recordkeeping requirements and workers’ compensation. When confronted with the issues discussed in this article, readers should consult legal counsel.
OSHA’s recordkeeping requirements and workers’ compensation involve two distinct bodies of laws and regulations. In this article, the term “recordability” refers to injuries and illnesses subject to OSHA recordkeeping requirements and “compensability” to injuries and illnesses for which employees are typically granted workers’ compensation benefits.
A recordable injury or illness is one that the employer is legally required to document via OSHA forms 300, 300A, and 301. The OSHA standard “Recording and Reporting Occupational Injuries and Illnesses” (29 Code of Federal Regulations 1904) presents criteria for determining recordability. Employers with fewer than 10 employees are exempt from the standard, as are employers in certain low-risk industries. For covered employers, injuries or illnesses that occur in the work environment are generally recordable, but the standard specifies several exceptions. The standard also offers guidance on whether an injury or illness is recordable in cases where the employee is working from home.
For most employers, workers’ compensation is regulated by state law. (The federal government has its own compensation system administered by the Department of Labor’s Office of Workers’ Compensation Programs.) An injury or illness may be OSHA recordable but not be accepted as compensable under workers’ compensation. Compensability should not be used to determine recordability. OSHA requires an employer to evaluate the employee’s work duties and the environment to decide whether one or more events or exposures in the work environment either caused or contributed to the resulting condition or significantly aggravated a preexisting condition.
OSHA RECORDKEEPING REQUIREMENTS The Occupational Safety and Health Act grants OSHA the power to “prescribe by regulation as necessary or appropriate for the enforcement of this Act or for developing information regarding the causes and prevention of accidents and illnesses.” The recordkeeping standard was promulgated in part to generate data that helps achieve this goal.
Company leaders often ask OEHS professionals to explain why an incident is recordable. In general, an injury or incident is recordable if it is work related and meets the recordkeeping criteria.
According to section 5 of the standard, an injury or illness is work related “if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a preexisting injury or illness.” In general, if the incident happened in the work environment, which includes not only physical locations but “the equipment or materials used by the employee during the course of his or her work,” then it is considered work related. The exceptions are summarized in the sidebar below.
The California-based insurance company Colony West offers a succinct description of how OSHA defines recordability. A recordable injury can range from a loss of consciousness to a fatality. If the employee misses work, requires medical treatment beyond first aid, or must transfer to another job, the incident is recordable. Broken bones, punctured eardrums, work-related cancers, sharps injuries, and hearing loss are also among recordable incidents, as are cases of tuberculosis and chronic irreversible diseases.
For employees working at home, the recordkeeping standard explains at 1904.5(b)(7) that the injury or illness will be considered work related if it is “directly related to the performance of work rather than to the general home environment or setting.” As noted in the standard, an employee working from home who injures their foot by dropping a box of work documents has suffered a work-related injury. But if an employee working at home is electrocuted by faulty home wiring, the injury is not considered to be work- related. The standard provides very few exceptions to what is an OSHA recordable incident.
In addition to these examples, OSHA has posted multiple items to its FAQ search engine and issued several letters of interpretation for further clarification. Although these FAQs are informative, they are often out of date and can provide confusing and contradictory interpretations. This is why it is important for the employer to conduct a thorough, documented incident investigation that accurately identifies the circumstances surrounding the incident.
COMPENSABILITY AND RECORDABILITY OSHA recordkeeping and workers’ compensation are “no fault” systems: regardless of who or what caused the work-related injury or illness, an incident is recordable and compensable as long as corresponding criteria are met. Often, but not always, if an incident is recordable, it is also compensable. The recordkeeping FAQs on OSHA’s website provide the following explanation:
Workers’ Compensation determinations do not impact OSHA recordability. The employer must evaluate the employee’s work duties and the work environment to decide whether an event or exposure in the work environment either caused or contributed to the condition or significantly aggravated a pre-existing condition. If so, the case is work-related.
The clearest exceptions to the connection between compensable and recordable cases are incidents involving employees of entities not required to maintain OSHA records. Though the incidents may be compensable, these employers have no corresponding duty to create an OSHA record.
In some states, injuries resulting from horseplay in the workplace are not compensable, but OSHA considers such injuries recordable. Likewise, the workers’ compensation law of a particular state may exclude claims arising from acts of violence, but OSHA requires employers to document recordable injuries sustained as a result of workplace violence. Several states bar workers’ compensation claims if the injured employee was under the influence of drugs or alcohol at the time of the injury. In contrast, OSHA recordkeeping obligations exist regardless of whether the incident occurred when the employee was under the influence.
A more nuanced exception to the connection between compensability and recordability is an incident that does not meet the recordkeeping criteria. To be recordable, an incident must result in “medical treatment beyond first aid” or one of the other criteria set forth in section 7 of the standard.
When Is an Injury at Work Not Work Related?
The OSHA recordkeeping standard outlines several exceptions to the standard’s requirements. The following examples, taken directly from 1904.5(b)(2), are of injuries or illnesses that occur in the work environment but are not considered to be work related and therefore do not need to be recorded:
1. the injury or illness occurs to an employee who was in the work environment as a member of the public 2. signs or symptoms surface at work but result from a non-work-related event or exposure that occurs outside of the work environment 3. the injury or illness results solely from voluntary participation in a wellness program or a medical, fitness, or recreational activity 4. the injury or illness is solely the result of eating, drinking, or preparing food or drink for personal consumption (whether bought on the employer’s premises or brought in) 5. the injury or illness is solely the result of an employee doing personal tasks (unrelated to employment) at the establishment outside of the employee’s assigned working hours 6. the injury or illness is solely the result of personal grooming, self-medication for a non-work-related condition, or is intentionally self-inflicted 7. the injury or illness is caused by a motor vehicle accident and occurs on a company parking lot or company access road while the employee is commuting to or from work 8. the illness is the common cold or flu 9. the illness is a mental illness
Note that the employer would be expected to record an illness resulting from consumption of food contaminated with lead or other workplace contaminants. Contagious diseases such as tuberculosis, brucellosis, and hepatitis A are considered work related, and therefore recordable, if the employee is infected at work. A mental illness will not be considered work related unless the employee voluntarily provides an opinion from a licensed healthcare professional with appropriate training and experience.
There are limited exceptions to recordability that involve employees who are injured or become ill while on travel status. See 1904.5(b)(6) for a list of exceptions with specific guidance.
First aid and medical treatment are defined in ways unique to the OSHA recordkeeping standards and have been subject to hundreds of interpretations by the agency. If a medical provider administers first aid and a compensable claim exists, that does not mean the case is recordable for purposes of OSHA recordkeeping. If the employee receives only first aid from a medical professional who collects a fee for service, the employee sustained a compensable injury that is not recordable under the OSHA recordkeeping rules. Similarly, an incident that causes an employee to leave work early on the day of the incident for first aid is not recordable if the employee returns to work the next day. Though the employee had a compensable injury or illness due to the loss of income, it is not recordable because the loss of time on the day of the incident does not trigger a documentation obligation, as explained in section 7 of the recordkeeping standard. In contrast, if the incident results in work restrictions placed on the employee by an in-house medical provider but does not incur a loss of income as a result, the incident is recordable but not compensable as there is no medical expense or wage loss. Another reason compensability and recordability may not be aligned is a determination that medical treatment received by an employee, which served as the basis for the OSHA record, was not necessary or not work related. As employers only have seven days to place a case on their OSHA records, decisions about whether to record an incident are often made with limited or incomplete information. Likewise, a workers’ compensation carrier may deny a claim, but if it meets recordkeeping criteria, that denial has no impact on the employer’s obligation to record the incident. A last example relates to the way certain states handled COVID-19 during the pandemic. While several states passed emergency regulations that made any case of COVID-19 in the workplace a compensable work-related illness, that did not necessarily create an obligation to document the illness on OSHA records. OSHA instructed employers to determine whether it was likely that an employee contracted the illness because of a work-related exposure. Many of the cases that were considered compensable were not recordable. THE OEHS PROFESSIONAL’S ROLE The OEHS professional is tasked with determining whether an incident meets OSHA recordkeeping requirements. Often, there is pressure from leadership to determine that the incident is not recordable. Chances are that few company leaders are knowledgeable about OSHA’s recordkeeping requirements. It’s essential for OEHS professionals to understand these requirements, ensure compliance, and provide knowledgeable guidance to management. Sometimes the determination of recordability is straightforward, as in the case of a laceration from a sharp edge that requires treatment beyond first aid. Questions arise when no incident is identified, as when an injury results from cumulative trauma. This scenario reveals the importance of conducting a thorough incident investigation and understanding the work task, including job safety and job hazard analyses, operating instructions, and risk evaluations. This information should be used to determine whether the work caused or contributed to the injury. The final piece of the puzzle is evaluation by a healthcare professional. If an incident results in treatment beyond first aid, work restrictions, or time away from work, it is recordable. Although the opinion of a medical professional is sought, the determination of work relatedness rests with the employer. According to section 5 of the recordkeeping standard, employers “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 preexisting condition.” Whether the determination of recordability is straightforward or requires further evaluation, the OEHS professional should document the rationale used to determine compensability. This documentation must be kept with the record of the incident and readily available to the organization. The most sustainable option is embedding the documentation into injury and illness recordkeeping software. The bottom line is the totality of the situation governs the determination of recordability. The decision should be based on the information noted in this article along with sound professional judgment. OEHS professionals should take the opportunity to engage and educate leaders wherever they are challenged about the recordability of an incident. The goal should be to develop a safety culture that focuses resources on identifying root causes and sustainable corrective actions rather than debating recordability. LORRAINE SEDLAK, CIH, CSP, FAIHA, is a senior EHS consultant at Bright Talent located in Tustin, California. JOHN D. SURMA is a shareholder in the Ogletree Deakins Houston office whose practice is focused on workplace health and safety and environmental matters. Send feedback to The Synergist.
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Colony West: “OSHA Injury and Illness Recordkeeping and Reporting Requirements.”
OSHA: Recording and Reporting Occupational Injuries and Illnesses, Recordkeeping Forms and Recording Criteria, Determination of Work-Relatedness.
OSHA: Recording and Reporting Occupational Injuries and Illnesses, Recordkeeping Forms and Recording Criteria, General Recording Criteria.
OSHA: “OSH Act of 1970.”
OSHA: “OSHA Injury and Illness Recordkeeping and Reporting Requirements.”
OSHA: Recordkeeping FAQ ID 15.
OSHA: Recordkeeping FAQ ID 151.
OSHA: Standard Interpretation: Determining Work-Relatedness for Recordkeeping of Injury Resulting from Horseplay (February 2009).