May 17, 2023

Mr. Travis W. Vance
Fisher & Phillips LLP
227 West Trade Street
STE 2020
Charlotte, N.C. 28202

Dear Mr. Vance:

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 request clarification on whether an employee's injury would be considered work-related as a result of an act of violence.

Scenario: In your letter, you state that your client's driver was driving a company vehicle, on the clock, and traveling on a public roadway. The driver was traveling between service calls near an intersection when a four-car collision occurred as the result of another car coming from the wrong direction in the same lane. After the accident occurred, the wrong-way motorist exited his car, shot your client's driver, stole the driver's truck, and fled the scene. There is no evidence that your client's driver said or did anything to provoke the wrong-way motorist in any way.

Later that day, your client learned that the wrong-way motorist had been in the midst of a serial crime spree at the time of the accident.

Question: Is the shooting injury sustained by our client's driver work-related? Would not the factual circumstances of such a continuous string of unforeseeable third-party criminal acts that injured, killed, and/or affected the general public over the course of several hours be sufficient to rebut the geographic presumption of work-relatedness? If not, what are some examples of circumstances OSHA would consider sufficient to rebut the presumption of work-relatedness?

Response: OSHA's recordkeeping regulation at 29 CFR 1904.5(a) provides that an injury or illness must be considered work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless an exception in Section 1904.5(b)(2) specifically applies. Section 1904.5(b)(1) defines the work environment as "the establishment and other locations where one or more employees are working or are present as a condition of their employment."

OSHA's approach to work-relationship in the recordkeeping regulation reflects two important principles. The first is that work need only be a causal factor for an injury or illness to be work- related. The regulation requires neither precise quantification of the occupational cause, nor an assessment of the relative weight of occupational and non-occupational causal factors. If work is a tangible, discernible causal factor, the injury or illness is work-related. The second principle is that a "geographic presumption" applies for injuries and illnesses caused by events or exposures that occur in the work environment. These injuries and illnesses must be considered work- related, unless an exception to the presumption in section 1904.5(b)(2) specifically applies. Accordingly, the presumption encompasses cases in which an injury or illness results from an event at work that is outside the employer's control, such as a lightning strike, or involves activities that occur at work but that are not directly related to production, such as horseplay. See, the preamble to OSHA's January 19, 2001, final rule revising the recordkeeping regulation, 66 Fed. Reg. 5916 at 5929.

Section 1904.5(b)(6) goes on to provide that injuries and illnesses that occur to an employee who is on travel status are considered work-related if, at the time of the injury or illness, the employee was engaged in work activities "in the interest of the employer." For example, travel to and from customer contacts, conducting job tasks, and entertaining or being entertained to transact, discuss, or promote business are all activities done "in the interest of the employer."

Based on the information in the above scenario, at the time of the collision and shooting, your client's driver was traveling in the interest of the employer as defined by section 1904.5(b)(6). Specifically, the driver was driving a company vehicle and was traveling between service calls when the accident and shooting occurred. As noted above, section 1904.5(b)(6) provides that traveling to and from customer contacts is an activity "in the interest of the employer," and therefore your client's driver was in the work environment at the time of the injury.

The issue of whether injuries and illnesses resulting from acts of violence in the workplace should be recorded by employers was addressed in the 2001 rulemaking that revised OSHA's recordkeeping regulation. During that rulemaking, several commenters recommended that OSHA include a work-related exception for certain acts of violence committed against employees in the work environment, including acts of violence committed by members of the general public. Some of these commenters argued that many acts of violence in the workplace are not under the control of the employer and should not be considered work-related. On the other hand, several commenters supported the recording of all injuries and illnesses resulting from acts of violence occurring in the workplace. See, 66 Fed. Reg. at 5954-5955.

In the 2001 final rule, and based on the record in that rulemaking, OSHA decided not to exclude the recording of injuries and illnesses involving acts of violence against employees in the work environment. As the Agency explained in the preamble to the final rule, injuries and illnesses resulting from acts of violence against employees at work are work-related under the positional theory of causation. The causal connection is usually established by the fact that the assault or other harmful event would not have occurred had the employee not, as a condition of their employment, been in the position where they were victimized. See, 66 Fed. Reg. at 5955-5956. Accordingly, OSHA's recordkeeping regulation does not allow employers to exclude injuries and illnesses resulting from random acts of violence occurring in the work environment from their recordkeeping forms.

Additionally, OSHA's Recordkeeping Frequently Asked Question 5-2 (found at http://osha.gov/recordkeeping/detailedfaq.html#1904.4) provides guidance on this issue:

Question 5-2: Are cases of workplace violence considered work-related under the new Recordkeeping rule?

The Recordkeeping rule contains no general exception, for purposes of determining work- relationship, for cases involving acts of violence in the work environment. However, some cases involving violent acts might be included within one of the exceptions listed in section 1904.5(b)(2). For example, if an employee arrives at work early to use a company conference room for a civic club meeting and is injured by some violent act, the case would not be work- related under the exception in section 1904.5(b)(2)(v).

Applying the above principles to the scenario described in your letter, it is clear that the injury sustained by your client's driver as a result of the collision and shooting was work-related for purposes of OSHA recordkeeping. Under part 1904, the recording of cases is not limited to the recording of occupational injuries and illnesses to those cases that are preventable, fall within the employer's control, or are covered by the employer's safety and health program. The issue is not whether the conditions could have, or should have, been prevented or whether they were controllable, but simply whether they are occupational, i.e., are related to work. This is true regardless of whether the employee is injured while on travel or while present at the employer's workplace. See, 66 Fed. Reg. at 5961. In addition, please be aware that the geographic presumption for work-relatedness may be rebutted if an injury or illness falls within one of the specific exceptions listed in section 1904.5(b)(2). However, as explained above, acts of violence committed against an employee is not listed as one of the specific exceptions in section 1904.5(b)(2).

Finally, please note that 29 CFR 1904.0 states that the purpose of the part 1904 recordkeeping regulation is to require employers to record and report work-related fatalities, injuries and illnesses. A note to this section informs employers and employees that recording or reporting a work-related injury, illness, or fatality does not mean that the employer or employee was at fault, that an OSHA rule has been violated, or that the employee is eligible for workers' compensation or other benefits. OSHA recognizes that injury and illness rates do not necessarily indicate an employer's lack of interest in occupational safety and health. In the preamble to the 2001 final rule, OSHA explained that recording a case on the OSHA recordkeeping forms indicates only three things: (1) that an injury or illness has occurred; (2) that the employer has determined that the case is work-related (using OSHA's definition of that term); and (3) that the case is non- minor, i.e., that it meets one or more of the OSHA injury and illness recording criteria. See, 66 Fed. Reg. 5933.

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 response to new information. To keep appraised of such developments, consult OSHA's website at http://www.osha.gov.

Sincerely,

Lee Anne Jillings, Director
Directorate of Technical Support and Emergency Management