May 2, 2024

MEMORANDUM FOR:

REGIONAL ADMINISTRATORS
STATE DESIGNEES

THROUGH:

AMANDA EDENS
Deputy Assistant Secretary of Labor for Occupational Safety and Health

FROM:

SCOTT KETCHAM
Acting Director, Directorate of Enforcement Programs

LEE ANNE JILLINGS
Director, Directorate of Technical Support and Emergency Management

SUBJECT:

Enforcement Guidance Under OSHA's Recordkeeping Regulation When First Aid, Active Release Techniques (ART), and Exercise/Stretching Are Used to Treat Musculoskeletal Injuries and Illnesses

This memorandum provides guidance to help determine whether musculoskeletal injuries and illnesses are recordable under OSHA's injury and illness recordkeeping regulation at 29 CFR 1904 when the only treatment given is first aid, Active Release Techniques (ART), and/or exercises and stretching.

Background

OSHA's recordkeeping regulation at 29 CFR 1904.4(a) provides that employers required to keep injury and illness records must record each case that meets the regulation's definition of "injury or illness," is work-related, is a new case and not a continuation of an old case and meets one or more of the general recording criteria in section 1904.7 or the additional criteria for specific cases found in sections 1904.8 through 1904.11. A case is recordable only if it meets all of these requirements.

Under section 1904.7, a work-related injury or illness meets the general recording criteria if it results in any of the following: death, days away from work, restricted work or transfer to another job, medical treatment beyond first aid, or loss of consciousness.¹ In addition, a case that involves a significant injury or illness diagnosed by a physician or other licensed health care professional meets the general recording criteria even if it does not result in death, days away from work, restricted work or job transfer, medical treatment beyond first aid, or loss of consciousness.

When determining whether musculoskeletal injuries and illnesses are recordable, Compliance Safety and Health Officers (CSHOs) should inquire as to whether the injury or illness meet any of the above criterion using the information provided in 29 CFR 1904.7(b)(1)-(5) as guidance. It is important to remember that each criterion operates independently of the others. For example, if an employee's work-related injury is being treated via first aid, but results in a work restriction, the injury will be recordable, even though the only treatment provided is first aid.²

The below discussion offers further advice to help CSHOs determine whether musculoskeletal injuries and illnesses are recordable under OSHA's recordkeeping regulation at 29 CFR 1904 under three specific types of treatment scenarios: first aid, Active Release Technique, and/or exercises and stretching.

First Aid

Cases of work-related musculoskeletal injuries and illnesses are generally not recordable if the only treatment given is first aid. First aid is defined in 29 CFR 1904.7(b)(5)(ii) as:

• Using a nonprescription medication at nonprescription strength (for medications available in both prescription and non-prescription form, a recommendation by a physician or other licensed health care professional to use a non-prescription medication at prescription strength is considered medical treatment for recordkeeping purposes).
• Administering tetanus immunizations (other immunizations, such as hepatitis B vaccine or rabies vaccine, are considered medical treatment).
• Cleaning, flushing or soaking wounds on the surface of the skin.
• Using wound coverings, such as bandages, Band-Aids®, gauze pads, etc.; or using butterfly bandages or Steri-Strips® (other wound closing devices, such as sutures, staples, etc. are considered medical treatment).
• Using hot or cold therapy.
• Using any non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc. (devices with rigid stays or other systems designed to immobilize parts of the body are considered medical treatment for recordkeeping purposes).
• Using temporary immobilization devices while transporting an accident victim (e.g., splints, slings, neck collars, back boards, etc.).
• Drilling of a fingernail or toenail to relieve pressure or draining fluid from a blister.
• Using eye patches.
• Removing foreign bodies from the eye using only irrigation or a cotton swab.
• Removing splinters or foreign material from areas other than the eye by irrigation, tweezers, cotton swabs or other simple means.
• Using finger guards.
• Using massages (physical therapy or chiropractic treatment are considered medical treatment for recordkeeping purposes); and
• Drinking fluids for relief of heat stress.

Section 1904.7(b)(5)(iii) provides that the above is a comprehensive list of first aid treatments. Any treatment not included on this list is considered medical treatment beyond first aid for OSHA recordkeeping purposes. Work-related injuries and illnesses that result in medical treatment beyond first aid meet the general recording criteria. As importantly, OSHA's definition of first aid for recordkeeping purposes differs from the usual definition of first aid by health care providers (see: Best Practices for Non-Healthcare Employers with Onsite Healthcare Services). Employers' representatives and clinical staff are often unaware of the important difference.

Note: OSHA considers the above treatments to be first aid regardless of the professional status of the person providing the treatment. Consequently, even when the treatments are provided by a physician or other licensed healthcare professional, they are still considered first aid for purposes of Part 1904.

The application of first aid, as detailed in 29 CFR 1904.7(b)(5)(ii), to treat a work-related musculoskeletal injury or illness is considered first aid for purposes of OSHA recordkeeping regardless of the number of times the treatment is applied. For example, if a work-related injury or illness is treated only with multiple doses of a nonprescription medication (e.g., ibuprofen or acetaminophen) at nonprescription strength, and the employee continues to work a full day and perform all routine job functions, the injury or illness is not recordable. In general, if an injured or ill employee is given first aid treatment, such as hot or cold therapy, massage, or some other treatment on the first aid list, that treatment should not be considered medical treatment for OSHA recordkeeping purposes, even when such treatment is provided over a long period of time or involves multiple applications.

As noted above, each of the general recording criterion in 29 CFR 1904.7 operates independently. If the application of first aid to a work-related musculoskeletal injury or illness keeps the employee from performing one or more routine functions of the job, or from working the full workday the employee would otherwise have been scheduled to work, then the employee's work has been restricted and the case is recordable. For example, if an employee sustains a work-related injury and a physician or other licensed health care professional recommends that the employee interrupts their work activities to rest every half hour; use ice for 15 minutes every hour; elevate the injured body part as much as possible; or work as tolerated, then that employee would have worked a partial shift, and the case is recordable. Note that the employer does not have to record restricted work activity if imposed only for the day on which the injury or the illness occurred.

Potential Issues with the Application of First Aid

Apart from OSHA's recordkeeping context, first aid is generally understood to mean the initial care of an injury or illness. Per the common clinical meaning, "first aid" generally does not involve multiple encounters with the same patient presenting the same concerns, unless there has been resolution, and a new event has occurred.³ It generally precedes definitive assessment of the need for medical care by someone who accepts that responsibility. In some cases, the need to repeatedly apply first aid treatments should alert the first aid provider to the possibility that an underlying condition may require further medical treatment beyond first aid.

In assessing an employer's compliance with OSHA's recordkeeping requirements, CSHOs should be aware that the repeated application of treatments included on the Part 1904 first aid list might be an indication that further necessary medical care is not being provided to an injured or ill employee. In such a case, the employer might be using repeated applications of first aid as a way to avoid the application of "medical treatment beyond first aid." In other words, the improper application of first aid to an injured or ill employee might be a means to avoid the recording of a work-related case on the OSHA recordkeeping forms. If a CSHO notices that first aid treatments are being repeatedly applied to the same worker who is presenting to the first aid provider with the same concerns, the CSHO should investigate further, e.g., using the questions included near the end of this memorandum.

Distinct from any potential recordkeeping requirements, repeated applications of first aid might indicate a violation of the medical services and first aid standard at 29 CFR 1910.151(a). This standard requires that employers make medical personnel readily available for advice and consultation. Where appropriate, employers must consult with the available medical personnel about an employee's illness or injury or make such consultation available to the employee directly. Repeated applications of first aid to the same employee presenting the same concerns can notify an employer that they need to consult with available medical personnel to determine whether further medical treatment is needed or make such consultation available to the employee directly. An employer's failure to take these steps may be grounds for a citation under 29 CFR 1910.151(a).

Active Release Techniques (ART)

ART is a patented movement-based massage technique that targets soft tissues such as muscles, tendons, ligaments, fascia, and nerves and is practiced by licensed healthcare professionals (usually a physical therapist or a chiropractor). The practitioners that perform ART receive a certification from Active Release Technologies, LLC., and a special designation is required for practitioners that perform ART in the workplace. As part of their certification, these practitioners agree to only perform ART in the workplace and no other forms of therapy, such as chiropractic manipulation, physical therapy, or other clinical assessments. During an ART treatment, the patient actively moves the affected structure while the practitioner applies pressure or maintains contact on the injured area. Some of the common conditions treated with ART include shoulder impingement, tennis elbow, carpel tunnel, shin splints, and neck and back pain.

In 2006, OSHA concluded that ART is "massage" for purposes of OSHA recordkeeping. Since massage therapy is included on the list of first aid treatments in section 1904.7(b)(5)(ii), if the only treatment an injured worker receives is ART, the employer is not required to record the injury. OSHA considers ART to be first aid regardless of the professional status of the person providing the treatment.⁴

It is not always easy to determine whether the only treatment an injured worker received was ART. The CSHO should interview an injured worker to learn more about the type and extent of treatment they received. For example, an injury would be recordable if the application of ART exceeds what is considered "massage" (e.g., the practitioner applies ART in a way that results in manipulation of the skeleton). However, in some cases, the injured employee may not be able to provide detailed information about the type of treatment they received. Accordingly, since licensed practitioners, whether chiropractors, physical therapists, or others, are all obligated to maintain records concerning patient condition and treatments provided, the CSHO should also request access to review those records. Similarly, licensed practitioners who are also ART-certified may not make recommendations on work-restrictions according to their ART certification and agreement. Making such recommendations means they are not practicing ART.

Note: The use of ART to treat a work-related injury or illness is recordable if the application results in job transfer, restricted work activity, or days away from work. Restriction of any activity that occurs at least once per week makes something recordable. The CSHO should verify and document whether work modifications were recommended by a physician or other licensed health care professional (PLHCP). Such modifications may be in the PLCHP's records and/or may have been communicated to the employer independently.

Exercise and Stretching

The use of exercise or stretching (i.e., therapeutic exercise) is not included on the list of first aid treatments in section 1904.7(b)(5)(ii). Such therapeutic exercise is considered medical treatment when it is designed and administered to treat a particular work-related injury or illness as part of a treatment plan and ends once the objectives of the treatment has been met. Accordingly, if an employee exhibits symptoms of a work-related injury or illness, the recommendation to conduct exercise/stretching, either at work or at home, to treat a work-related injury or illness makes the case recordable regardless of the professional status of the person making the recommendation.

Exercise and stretching that are generally part of safe work practices commonly recommended for anyone engaged in certain tasks or working with certain equipment are not recordable as medical treatment. In order for exercise/stretching to be recordable, there must first be a work-related injury or illness to an employee. Exercise or stretching conducted for purely precautionary purposes is not considered medical treatment.

For example, if, as part of an employee wellness program, a Certified Athletic Trainer (ATC) recommends daily pre-shift exercise to employees who do not exhibit signs or symptoms of an abnormal condition, there is no case to record. In order for an exercise or stretching program to be considered medical treatment beyond first aid, there must first be a work-related injury or illness.

Additionally, if an employee has an injury or illness that is not work-related, (e.g., the employee is experiencing muscle pain solely from home improvement work), the administration of exercise does not make the case recordable either. This case is not recordable even if an ATC recommends that the employee participate in an exercise program at work to treat the non-work-related injury. However, if an ATC recommends that an employee participate in an employee wellness exercise program to treat a work-related injury or illness, then the treatment for that employee involves medical treatment beyond first aid and is a recordable case. Again, for a case to be recordable, a work-related injury or illness must exist.

Keep in mind that an exercise or stretching program to treat a work-related injury or illness does not need to be conducted at work for the case to be recordable. If the employer provides an employee with a home exercise program (e.g., written instructions on sets/reps and resistance) or stretching program to treat a work-related injury or illness, the exercise or stretching program constitutes medical treatment and the case is recordable.

Also keep in mind that the number of times an employee with a work-related injury or illness is seen for care by a physician or other licensed health care professional does not determine whether an employee's case is recordable. Similarly, neither the duration nor intensity of the care determines recordability, nor does the number of follow-up visits to receive care. Recordability depends on the type of treatment rather than the number of times such treatment is administered.

The following actions and questions will help the CSHO determine whether exercises and/or stretches administered for a musculoskeletal injury or illness constitutes medical treatment resulting in a recordable case.

Review of Medical Records

• Determine whether the same name and body part appears on the first aid log more than once in a four-week period.
• Determine the nature of the injury, progression of symptoms, and what treatment was recommended.
• Determine if the log reports that employees were referred to outside care (e.g., urgent care, physician appointment, ER visit, ambulance called).
• Determine whether exercise was recommended for an injured employee or employees.

Questions for Employers

• Do you have an exercise/stretching program in place for employees at the establishment?
  • If the employer has such a program, ask:
    • When was the exercise/stretching program implemented at the establishment?
    • What does the exercise/stretching program entail/consist of?
    • How does the employer inform employees about the exercise/stretching program at the establishment?
    • Has the exercise/stretching program changed?
      • If so, document what the changes were.
    • Was there a change in the course of stretching exercises to address an employee's work-related injury/illness?
      • If so, what were the changes?
• Does your workplace have an onsite ART practitioner?
  • Does (s)he ever recommend work restrictions?
  • Do these have a start or end date?
  • Are they specific, focused on specific jobs or tasks?
  • Are these recommendations made to the first-line supervisor or higher levels of management?
  • Are they tracked in a written system, like an electronic log or hand-written notes?
  • Does the ART practitioner maintain a separate clinical log beyond the ART system where such restrictions are maintained?

Questions for ART Practitioner

• Are you currently licensed as a clinician in the State of ------?
• If yes, in what profession (e.g., nurse, advanced practice nurse, chiropractor, physician, massage therapist, physician assistant)?
• Are you currently certified as an ART practitioner?
  CSHOs can determine whether an ART practitioner has an active ART certification or whether the certification has expired [by searching the internet or contacting DTSEM.]
• Do you ever recommend restrictions from specific elements of the job?

Note: If there was a change in the course of stretching exercises or the injured employee was restricted from performing one or more of their routine job functions or recommended a job transfer to specifically address the employee's injury or illness, the case is considered an OSHA recordable. Therefore, the CSHO should verify whether the employer recorded the case on their OSHA 300 or equivalent form as appropriate.

Questions for Employees

• What symptoms did you experience that led you to seek care?
  • How long had the symptoms lasted before you sought care at the clinic?
  • What body part did they occur in?
  • Please describe your symptoms.
  • How long did your symptoms last (generally and after treatment)?
  • Did your symptoms go away after treatment?
  • Did your symptoms improve when you were off work?
• What did the first aid clinic do for the injury or pain that you experienced as a result of your job?
  • What medications, if any, were given?
  • What treatment or first aid did you receive?
• Have you gone to the first aid clinic for the same problem multiple times?
  • How many times?
  • How frequently/far apart were those visits?
    Was the advice after the first visit the same or different?
• Were you sent to outside medical care, or offered the opportunity to see outside medical care?
  • If yes, how long did that take?
  • Was there a delay of more than a day in sending you out for care?
  • If you declined it, why?
• Did a delay in appropriate treatment/referral for a work-related injury make your condition worse?
  • If so, how?
• Did your employer (including first aid personnel, or your manager) pressure or encourage you to not seek outside care? If yes:
  • What did that person say or do?
• Did you feel that there would be a negative consequence at your job if you saw an outside medical provider?
• Has it been recommended to you to do exercises or stretches to address an injury or pain that you experienced because of your job?
  • If the employee has been given such a recommendation, ask:
    • Who made this recommendation?
    • How often are you supposed to do these exercises/stretches?
    • How much time do you/did you spend doing these exercises/stretches daily?
    • Have you been instructed as to when you can stop doing these exercises/stretches?
    • If so, when were you told to stop?
      • Are these exercises/stretches different than exercises/stretches recommended for all employees you do/were trained to do daily for work (such as at the start of work)?
      • If yes, how are they different?
  • Do you know of anyone who has gone to the first aid station/clinic/medical office more than once for the same problem? Did that person seek outside medical care?
• Does your ART practitioner ever recommend work restrictions?
  • Do these have a start or end date?
  • Are they specific, focused on specific jobs or tasks?
  • Are these recommendations made to the first-line supervisor or higher levels of management?
  • Are they tracked in a written system, like an electronic log or hand-written notes?
  • Does the ART practitioner maintain a separate clinical log beyond the ART system where such restrictions are maintained?

Note: If stretching exercises were modified or changed to specifically address an employee's injury or illness, the case is likely an OSHA recordable. Therefore, the CSHO should verify whether the employer recorded the case on their OSHA 300 log or equivalent form.

If you have any questions regarding this policy, please contact [the Directorate of Technical Support and Emergency Management's Office of Statistical Analysis at (202) 693-2300].

¹ The starting point in evaluating recordability is determining whether the case meets the regulation's definition of "injury or illness." Section 1904.46 defines "injury or illness" as an "abnormal condition or disorder." An abnormal condition need not include objective signs, such as results from laboratory tests or medical evaluations, to be considered an injury or illness. Simple subjective signs, such as an employee statement that they feel pain or other symptoms such as muscle soreness, would be conclusive in determining that an abnormal condition exists. See, OSHA's January 25, 2010, letter of interpretation to Eric Blankenheim. Also, note that pain and/or other MSD symptoms, of and by themselves, may indicate an injury or illness. In this regard, MSD cases are no different than other types of injury or illness. Symptoms such as pain are one of the primary ways that injuries and illnesses manifest themselves. If an employee reports pain or other symptoms affecting the muscles, nerves, tendons, etc., the incident must be evaluated for work-relatedness, and, if determined by the employer to be work-related, must be evaluated against the other recording criteria to determine its recordability.

² Section 1904.4(a) provides that injuries and illnesses are recordable only if they are work-related, new, and meet one or more of the Part 1904 recording criteria.

³ There are exceptions to this rule, of course, such as where a worker might need a fresh bandage.

⁴ See OSHA Letters of Interpretation dated July 24, 2006 and May 23, 2019.

[Corrected for public webpage 5/9/2024]