THE ISSUES RELATED TO OSHA AND WORK AT HOME ARE PRESENTLY UNDER REVIEW. SEE ASSISTANT SECRETARY JEFFRESS' JANUARY 28, 2000 TESTIMONY REGARDING OSHA COVERAGE OF WORKING AT HOME.

June 21, 1993

Mr. Patrick R. Tyson
Constangy, Brooks & Smith
Suite 2400
230 Peachtree Street, N.W.
Atlanta, Georgia 30303-1557

Dear Mr. Tyson:

Thank you for your letter dated March 29, requesting interpretations on several OSHA injury and illness recordkeeping issues. Please excuse the delay in my response. I will address your questions by first restating each one then answering it. Wherever possible, I will reference the Recordkeeping Guidelines for Occupational Injuries and Illnesses by citing the page and Q&A numbers that apply.

Q1. Many employers now maintain OSHA Logs at a central location and mail out copies to their respective establishments every 30-45 days, consistent with the Recordkeeping Guidelines for Occupational Injuries and Illnesses (pgs. 21-22). Is it permissible for these employers, many of whom have in excess of 100 establishments, to sign the Certification of Annual Summary Totals with an electronic signature?

A1. Yes, it is permissible to use an electronic signature to satisfy the certification requirements. However, some form of documentation should exist at the central location stating that the person has knowledge that his or her signature is being entered to certify the accuracy and completeness of the forms.

Q2. It is clear from other opinion letters and the Recordkeeping Guidelines (pg. 44) that if a doctor gives an employee a prescription for medicine and the employee, for one reason or another, fails to take the medicine, the issuance of the prescription nevertheless constitutes "medical treatment." What if a doctor, however, gives an employee prescription only if back pain intensifies or persists." Would this constitute "medical treatment" even if the employee's condition improves and the prescription, per the Doctor's instruction, is not filled?

A2. Yes, it would still be considered medical treatment. To keep the recordkeeping system as simple as possible, we have made the interpretation that once a prescription (for more than a single dose) is issued, it is to be considered medical treatment.

Q3. The Bloodborne Pathogens Standard requires that employers offer the hepatitis B vaccine to employees who are at risk of direct contact with body fluids. If an employee voluntarily elects to take the vaccine and develops an adverse reaction that requires medical treatment, does this reaction make the hepatitis B vaccine a recordable injury or does the fact that the vaccine was purely preventative in nature make the case non-recordable? Does it matter whether the vaccine is given on the employer's premises versus off premises at a local physician's office or clinic?

A3. Whether the vaccine was given on premises or off will be the determining factor for recordability of this case. If the vaccine were given on premises, it would be presumed a work related exposure (instantaneous)(page 34, C-7). Any work related injury requiring medical treatment is recordable. Injuries occurring off premises are considered work related if the employee is engaged in a work activity or is present as a condition of his or her employment. In your scenario above, there was no event or exposure and the employee voluntarily chose to receive the vaccine. This is not considered to be a "condition of employment." The case, therefore, would not be work related if it occurred off premises.

Q4. If two employees leave their jobs and engage in a fight in the company parking lot during their shift, are resulting injuries requiring medical treatment recordable or does the fact the fight occurred in the parking lot render the case non-OSHA recordable?

A4. Company parking facilities are generally not considered part of the employer's premises for OSHA recordkeeping purposes. Injuries to employees on these parking lots are not presumed to be work related, and are not recordable unless the employee was engaged in some work related activity or present as a condition of employment (page 33, Q&A C-3). The above scenario is not a recordable case.

Q5. Assume that an employee is working 15 days of restricted work activity after a work related back injury. On the fifth day of the restricted work, the employee suffers a shoulder injury requiring restricted work activity for ten days. While the second case is clearly recordable, how does the employer record the 10 days restricted work activity attributable to the second injury running concurrently with the 10 days of restricted activity remaining on the first injury?

A5. While both cases are to be recorded as lost workday cases involving restricted work activity, the lost workdays should not be double counted. When the second case occurs, stop the day count for the first case and begin counting the days for the second. Once the second case resolves, if the employee continues to be restricted due to the original injury, resume counting days on the first case.

Q6. The Recordkeeping Guidelines (pgs. 49-50) state that the count of lost workdays may be stopped "for cases that end in total disability." Assume that an ill employee is out of work under the care of a physician for a work related cumulative trauma disorder. After several months, the physician documents that the employee has reached "maximum medical improvement." The physician advises that the employee should not return to his regular job and may only work in a job that will not involve repetitive use of his right arm. Assume further that if no such jobs are available, the employee will not be returned to work and will be laid off by the employer. Under the companies policy, after 12 months on layoff, the employee will be terminated. At what stage should the company stop the count of days away from work -- at the time the physician determines and documents "maximum medical improvement," at the time of the layoff, at the employee's termination, or at some other time?

A6. In the above scenario, if it is understood that the employee will not be given a permanently modified job or transfer within the company, the day count should stop when the physician makes the determination that the employee is permanently disabled and will never return to his regular job. If the possibility of working a permanently modified job exists, the day count should continue until either the employee begins to work a modified job or it is later determined that no such job will exist.

Q7. Normally, employees in a particular department rotate among three different jobs, eight hours per day. If, after a work related injury, an employee is directed by his physician to continue to rotate among the three different jobs each day "but spend less time on the aggravating job," does this direction constitute "restricted work activity?"

A7. Yes. Restricted work activity occurs when the employee is physically or mentally unable to perform all or any part of his or her normal assignment during all or any part of the workday or shift (page 43, section 3). In the above scenario the employee is able to do all aspects of his or her normal job (rotating among the three different jobs), but is unable to do his normal assignments during each segment of the entire shift.

Q8. Assume that an employee's job is to place product onto trays. Once there is 30 lbs. of product on a tray, the job requires the employee to remove the tray and place it on a cart. If after a work related injury the employee is directed to place 20 lbs. (as apposed to 30 lbs.) of product on a tray before placing the tray on a cart, does this direction constitute "restricted work activity?"

A8. Yes. Restricted work activity occurs when the employee is physically or mentally unable to perform all or any part of his or her normal assignment during all or any part of the workday or shift (page 43, section 3). In the above scenario the employee is unable to lift the required 30 pounds and thus has restricted work activity.

I hope you find this information useful. If you have any further questions, please call at Area Code (202) 219-6463.

Sincerely,



Stephen A. Newell
Director
Office of Statistics