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OSHA Addresses Unique Recordkeeping Scenarios

For those employers who fall under OSHA’s recordkeeping requirements, it’s usually relatively easy to determine whether a workplace injury must be recorded. Sometimes, however, as a couple of recent cases highlight, the facts are a bit more tricky. 

Take the employee at a West Virginia window manufacturer. He sustained a small cut (more like a scratch) to his index finger while working. When the cut began to bleed, the employee asked a co-worker to help him put a Band-Aid on the cut. This sounds like a clear case of basic first aid, which is not recordable. But as the late Paul Harvey would say, there’s more to the story. As the co-worker was applying the Band-Aid, the employee saw some of his blood and fainted. He briefly lost consciousness, but did not suffer any additional injury from the fainting. 
Does this change the recordability of the events? OSHA’s Technical Support Division said “yes.” While the scratch was not recordable because it only required basic first aid for treatment, the employee’s fainting was a separate event that met one of OSHA’s express general recording criteria (i.e., loss of consciousness). The fact that the fainting was caused by an otherwise non-recordable event did not impact the decision. 
Another recent case that presented unique facts occurred when the employee of a commercial construction contractor hurt himself on the job, but subsequently tested positive pursuant to the employer’s post-accident drug and alcohol test. Turns out the employee was drunk and the alcohol likely contributed, if not outright caused, the injury. Normally, all workplace injuries requiring more than first aid are recordable, and the fact that the injury may have been caused by the employee’s (or another employee’s) negligence does not change that. 
Here, however, the employer questioned recordability based on an OSHA regulation that expressly exempts from recording injuries that are self-inflicted or those resulting from an employee’s personal grooming or self-medication for a non-work related condition. Was the employee’s voluntary alcohol consumption a form of self-medication for his alcoholism? The employer argued yes, but OSHA’s Technical Support Division said no, finding the injury to be reportable. OSHA viewed the employee’s consumption of alcohol as a manifestation of his alcoholism, rather than a form of treatment for it. 
Because each of these cases met the regulatory criteria, the employer was required to record them in its OSHA 300 Log, with a corresponding injury report (OSHA Form 301). 

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Don Berner, the Labor Law, OSHA, & Immigration Law Guy
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Boyd Byers, the General Employment Law Guy
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Jason Lacey, the Employee Benefits Guy
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