July 29, 2019

Alan Parker, CSP
Corporate Health & Safety Specialist
Ergon, Inc.
P.O. Box 1639
Jackson, MS 39215-1639

Dear Mr. Parker:

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. Specifically, you ask OSHA to clarify whether an injury sustained by an employee at your establishment is considered work-related for purposes of OSHA recordkeeping.

Scenario:
An employee experienced an injury when sharpening a personal pocket-knife while sitting in a company owned-truck parked in the employer’s parking lot. The employee lacerated the palm of his hand and was treated with seven sutures, and the employee returned to work immediately with no restrictions.

You state that because the employee was on his lunch break at the time of the injury, you believe the employee was present in the work environment as a member of the general public rather than as an employee. You also believe that the injury is solely the result of the employee doing personal tasks at the establishment outside of his assigned working hours.

Question 1
29 C.F.R. § 1904.5(b)(2)(i) states that you are not required to record injuries or illnesses if, at the time of the injury or illness, the employee was present in the work environment as a member of the general public rather than an employee. Does this particular scenario fall under this exception making it non-work related, and therefore not recordable?

Response 1
No. The exception in section 1904.5(b)(2)(i) is aimed at employers whose establishments are also public places, i.e., retail stores. This exception allows the employer to avoid recording injuries or illnesses that occur outside of the employment relationship when a worker happens to be using the employer’s facility as a member of the general public. As explained in the preamble to the regulation, this exception would apply if an employee of a retail store patronized the store on a non-work day and was injured in a fall. 66 Fed. Reg. 5950. This exception is based on the fact that no employment relationship is in place at the time of such an injury. In these situations, the injury or illness has nothing to do with the employee’s work or the employee’s status as an employee.

This exception does not apply because your establishment is not a public place. In addition, the employee was using a company-owned car when the injury occurred. Accordingly, the injury described in the scenario above does not meet the exception in Section 1904.5(b)(2)(i),and therefore is recordable based on the medical treatment the employee received. See, 66 Fed 5950.

Question 2
29 CFR § 1904.5(b)(2)(v) states that you are not required to record injuries or illnesses if the injury or illness is solely the result of an employee doing personal tasks (unrelated to his/her employment) at the establishment outside of working hours. Does this particular scenario fall under this exception making it non-work related, and therefore not recordable?

Response 2
No. The injury described in the scenario does not meet both conditions in section 1904.5(b)(2)(v). For the “personal tasks” exception in section 1904.5(b)(2)(v) to apply, the injury or illness must: (1) be solely the result of an employee doing a personal tasks (unrelated to his/her employment) at the establishment; and (2) occur outside of the employee’s assigned working hours. The injury you describe does not meet the second criterion because it occurred during the employee’s lunch break. See, OSHA’s March 10, 2005 letter of interpretation to Milagros Flores. Lunch breaks are considered assigned working hours for injury and illness recordkeeping purposes. See November 15, 2010 letter of interpretation to Kenneth Colonna; February 16, 2010 letter to Scott Hayes. OSHA’s definition of assigned working hours means “those hours the employee is actually expected to work, including overtime.” See FAQ 5-4.

As explained in the preamble to the 2001 final rule, this exception is meant to be limited and only apply to situations where an employee is using the employer’s establishment for purely personal reasons outside of his or her assigned working hours. See, 66 Fed 5951.

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,

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