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OSHA requirements are set by statute, standards and regulations. Our interpretation letters explain these requirements and how they apply to particular circumstances, but they cannot create additional employer obligations. This letter constitutes OSHA's interpretation of the requirements discussed. Note that our enforcement guidance may be affected by changes to OSHA rules. Also, from time to time we update our guidance in response to new information. To keep apprised of such developments, you can consult OSHA's website at https://www.osha.gov.
May 12, 1994
Ms. Melinda M. Sweet
Associate General Counsel
Lever Brothers Company
390 Park Avenue
New York, New York 10022-4698
Dear Ms. Sweet:
Your letter dated April 19, addressed to Denver Holt of the St. Louis OSHA Area Office, was forwarded to the OSHA Office of Statistics for review. The Division of Recordkeeping Requirements is responsible for the administration of the injury and illness recordkeeping system nationwide.
As stated in section B.1 on page 48 of the Recordkeeping Guidelines for Occupational Injuries and Illnesses, lost workday cases involving days away from work are cases resulting in days the employees would have worked but could not because of the work related injury or illness. Furthermore, if the employee would have worked overtime days had he or she not been injured or ill, then the overtime days must be counted (page 48, Q&A B-3).
The fact that the overtime is voluntary is immaterial. The only consideration is whether the employee would have worked the overtime if he or she had not been injured or ill. If the employee had been scheduled -- whether by management direction or by voluntary action -- to work on Saturday or Sunday, or the employee's past history showed a clear pattern that he or she would have worked those days, then the days must be counted.
Conversely, if the employee was not scheduled to work the weekend days and that employee's past record showed no likelihood that he or she would have worked those days, then the days need not be counted.
A person's normal work week is not determinative, but is looked at in some cases as outlined above. An employee may never work on Saturday or Sunday but may be scheduled for one weekend. If he or she cannot work the overtime because of an occupational injury or illness (regardless of normal job assignment), then the days must be counted as lost workdays. Your quote attributed to myself does not reflect an accurate statement of the regulations, instructions or interpretations.
I hope you find this information useful. If you have any further questions, please contact us at Area Code (202) 219-6463.
Sincerely,
Bob Whitmore
Chief
Division of Recordkeeping Requirements