August 18, 2014

Ashley M. James
Take Care Health Systems
3400 Amamosa Road
Clinton, IA 52732

Dear Ms. James:

Thank you for your letter to the Occupational Safety and Health Administration (OSHA) regarding the recordkeeping regulation contained in 29 CFR Part 1904 - Recording and Reporting Occupational Injuries and Illnesses. In an effort to provide the public with prompt and accurate responses, we developed and continue to refine a set of Frequently Asked Questions (FAQ), in addition to maintaining a log of Letters of Interpretation (LOI) on the OSHA Recordkeeping web site.

Your letter requests clarification of OSHA's injury and illness recordkeeping requirements at Section 1904.5, Determination of work-relatedness. Specifically, you ask OSHA to clarify whether the aggravation of an employee's preexisting condition is considered a work-related injury.

Scenario

An employee is required to have an OSHA mandated venipuncture. Prior to the blood draw, the employee declares that he has a history of syncope induced by venipuncture, also known as Blood-injury phobia. Would this be considered a pre-existing condition similar to epilepsy, diabetes and narcolepsy, and therefore excluded from OSHA recordability?

Response

The employee's Blood-injury Phobia is a pre-existing condition for purposes of OSHA recordkeeping. Under Section 1904.5(b)(5), an injury or illness is a pre-existing condition if it resulted solely from a non-work-related event or exposure that occurred outside the work environment. Pre-existing conditions also include any injury or illness that the employee experienced while working for another employer. See, the January 19, 2001, preamble to the final rule revising OSHA's recordkeeping regulation, 66 Federal Register 5915 at 5960.

Section 1904.5(a), provides that an injury or illness must be considered work-related if an event or exposure in the work environment significantly aggravated a pre-existing condition. Section 1904.5(b)(4) provides that a pre-existing injury or illness has been significantly aggravated, for purposes of OSHA injury and illness recordkeeping, when an event or exposure in the work environment results in any of the following:

(i)

death, provided that the pre-existing injury or illness would likely not have resulted in death but for the occupational event or exposure;

(ii)

loss of consciousness, provided the pre-existing injury or illness would not have resulted in loss of consciousness but for the occupational injury or illness;

(iii)

one or more days away from work, or days of restricted work, or days of job transfer that otherwise would not have occurred but for the occupational event or exposure;

(iv)

medical treatment in a case where no medical treatment was needed for the injury or illness before the workplace event or exposure, or a change in medical treatment was necessitated by the workplace event or exposure.

In the scenario described in your letter, the case would be considered work-related if the pre-existing condition was significantly aggravated by an event or exposure in the work environment. For example, if the drawing of blood in your scenario resulted in the employee fainting (loss of consciousness), the case is work-related and must be recorded on the OSHA 300 Log. See, Section 1904.5(b)(4)(ii). A new case should be recorded each time these circumstances are met.

Please know that blood tests that are not required as a condition of work, may meet the work-related exemption in Section 1904.5(b)(2)(iii). That Section provides that an injury or illness is not work-related if it results solely from voluntary participation in a wellness program or in a medical, fitness, or recreational activity such as a blood donation, physical examination, flu shot, exercise class, racquetball, or baseball. For example, a case would not be recordable if the blood test was administered as part of a voluntary physical exam and the employee fainted. Similarly, if the employee was voluntarily donating blood and passed out, the case would not be recordable.

Additionally, OSHA's policy regarding medical surveillance requirements is that the employer must make medical surveillance programs available (for those exposures/hazards as determined to be at or above thresholds stated in individual OSHA standards), at no cost and at a reasonable time and place, to the employee, but the employee is not required to undergo the medical surveillance. OSHA does not require an employer to mandate that its employees undergo medical surveillance. However, OSHA's standards are intended as minimum requirements. Thus, employers may adopt more stringent requirements for employees, and in doing so, may enforce mandatory participation in medical surveillance programs within the guidelines of labor/management relations. See, OSHA's Letter of Interpretation to The Honorable Sam Gejdenson dated August 6, 1987.

We hope you find this information helpful. 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 responses to new information. To keep appraised of such developments, you can consult OSHA's website at http://www.osha.gov.

Sincerely,

Francis Yebesi, Acting Director
Directorate of Evaluation and Analysis