April 3, 2019

Mr. Neil H. Wasser
Constangy, Brooks, Smith & Prophete, LLP
230 Peachtree Street, N.W.
Atlanta, GA 30303-1557

Dear Mr. Wasser:

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. You request clarification concerning the recordability of a case resulting in days away from work. Specifically, you ask OSHA to clarify how an employer should count days away from work for employees engaged in intermittent work activities.

Scenario A: In your letter, you state an employer provides construction services to industrial customers at customers’ locations. The employer employs transient workers to perform these services. Transient workers are non-exempt, hourly employees who work on a project basis. Projects vary in duration, but the typical project lasts anywhere from four days to two weeks. At the end of a project, the workers are placed in inactive status. However, the employer does not terminate the transient workers so that the workforce can be quickly mobilized to the next job without going through the hiring process. During the inactive periods, the transient workers remain on the employer’s payroll system, and in the employee database, but they are not working and do not receive compensation. The transient workers are free to pursue other employment during inactive periods, and are eligible for unemployment compensation benefits. When new projects are available, the employer contacts transient workers to offer work. Transient workers may choose to accept or decline the assignment. If a transient worker turns down a project, the employer will contact other transient workers until the project is fully staffed. There is no guarantee of work on a future project at the end of a project. The employer’s practice is to terminate the employment relationship if a transient worker has not been assigned to a project in over a year.

Question 1: Transient Worker A suffers a work-related injury on August 14 that results in days away from work. The doctor advises Worker A to remain off work until August 22. On August 15, employer’s project is completed as planned and the work crew of which Worker A is a member demobilizes from the customer’s site. A new project is scheduled to begin on August 25. The employer offers Worker A an opportunity to work on the new project and Worker A reports to the new project site on August 25.

Does the employer continue counting the days away from work until the employee is returned to full duty status by the treating physician on August 22, or consistent with OSHA’s Frequently Asked Question (FAQ) 7-21, can the day count stop on August 15 when the project terminated for reasons unrelated to the injury?

Response: OSHA’s recordkeeping regulation at section 1904.7(b)(3) contains the requirements for recording work-related injuries and illnesses that result in days away from work and for counting the total number of days away associated with a given case. Section 1904.7(b)(3)(viii) permits the employer to stop counting days away from work if the employee leaves the company for some reasons unrelated to the injury or illness such as retirement, a plant closing or to take another job. If the employee leaves the company because of the injury or illness, the employer must estimate the total number of days away from work.

OSHA’s FAQ 7-21 states:

Q. If an employee leaves the company after experiencing a work-related injury or illness that results in days away from work and/or days of restricted work/job transfer how would an employer record the case?

A. If, the employee leaves the company for some reason(s) unrelated to the injury or illness, section 1904.7(b)(3)(viii) of the rule directs the employer to stop counting days away from work or days of restriction/job transfer. In order to stop a count the employer must first have a count to stop. Thus, the employer must count at least one day away from work or day of restriction /job transfer on the OSHA 300 log. If the employee leaves the company for some reason(s) related to the injury or illness, section 1904.7(b)(3)(viii) of the rule directs the employer to make an estimate of the count of days away from work or days of restriction/job transfer expected for the particular type of case.

Based on the information described in your letter, the injured worker continues to be an employee of the company because an employment relationship exists. Although workers go into “inactive status” from time-to-time, they remain on the company payroll and do not have their employment terminated. Also, in your scenario, the company has not closed and Worker A has not left employment due to reasons either related or unrelated to an injury or illness. Therefore, the employer should not stop the day count when the project ends on August 15, but should continue to count the recommended number of calendar days until August 22.

Question 2: Same as Scenario A, except that the doctor advised Transient Worker A to remain off work until August 27. The employer offers Worker A work on the new project and Worker A accepts the work. The new project begins on August 25. Worker A returns to work on August 27. Does the day count stop on August 15 or continue through August 27?

Response: The employer should continue to count the recommended days away from work until August 27. Again, Transient Worker A and the company continue to have an employment relationship during the time of the recommended days away from work. Section 1904.7(b)(3)(ii) and (iii) make clear that an employer must record days away cases according to a physician or licensed health care professional’s recommendation that the injured or ill worker stay at home or return to work.

Scenario B: You state, same general work described in Scenario A, but the employer maintains a small sub-group of these workers and pays them 40 hours each week, even when they are not working on a project.

Question 1: If Transient Worker A is a member of this sub-group, does this change the recordkeeping determination described above in Scenario A?

Response: No, the determination would not change for purposes of OSHA recordkeeping. Again, in both scenarios Transient Worker A is considered an employee of the employer. Therefore, injuries or illnesses must be recorded on the employers OSHA forms as appropriate.

Sincerely,

Amanda L. Edens, Director
Directorate of Technical Support and Emergency Management