June 12, 2024

Mr. Mark N Duvall
Beveridge & Diamond, P.C.
1900 N Street, N.W., Suite 100
Washington, DC 20036

Dear Mr. Duvall:

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 death would be considered work-related when involved in a motor vehicle accident.

Scenario: In your letter, you state that an employee, who does not have a fixed work site, left his home, and traveled approximately 300 miles to a customer site. After the employee arrived at the customer site, he checked into a hotel, and conducted work activities for several days. Once the work activities at the customer site were completed, the employee traveled to a relative's home and stayed overnight at a hotel. Both the relative's home and hotel were located near the route the employee would have used had he traveled directly from the customer site back to his home.

After staying overnight at the hotel, the employee resumed his trip back home using the same route he would have taken had he not stopped to visit his relative. Along the way, he stopped for gas, which he paid for with his company credit card and resumed his trip home. As he neared his home, his vehicle apparently slid on an icy road (not in a construction zone), resulting in an accident that fatally injured the employee.

Question: Is the employee's death work-related considering the various stops and overnight stays?

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. Section 1904.5(b)(1) defines the "work environment" as the establishment and other locations where employees are working or are present as a condition of their employment. Work-relatedness is presumed under Part 1904 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)(6) provides that injuries and illnesses that occur when an employee is on travel status are work-related if, at the time of the injury or illness, the employee was engaged in work activities "in the interest of the employer." Examples of such activities include travel to and from customer contacts, conducting job tasks, and entertaining or being entertained to transact, discuss, or promote business (work-related entertainment includes only entertainment activities being engaged in at the direction of the employer).

The recordkeeping regulation includes two exceptions in which injuries or illnesses sustained by employees traveling in the interest of the employer are not considered work-related. First, section 1904.5(b)(6)(i) provides that, when an employee checks into a hotel, motel, or other temporary residence, the employee is considered to have established a “home away from home.” At this time, the status of the employee is the same as that of an employee working at an establishment who leaves work and is essentially “at home.” In other words, when an employee checks into a hotel, motel, or temporary residence, they have left the work environment, and their activities must be evaluated in the same manner as those of a non-traveling employee. In situations where the employee has established a "home away from home" and is reporting to and from a fixed worksite each day, injuries or illnesses that occur while the employee is commuting between the temporary residence and the job location are not considered work-related. These cases are similar to when an employee commutes between home and work and are not required to be recorded on the OSHA 300 log.

Second, section 1904.5(b)(6)(ii) provides that an injury or illness is not considered work-related if it occurs while the employee is on a personal detour from the route of business travel. This exception allows the employer to exclude injuries and illnesses that occur when the employee takes a side trip for personal reasons while on a business trip (e.g., a vacation or sight-seeing excursion, to visit relatives, or for some other personal purpose).

Additionally, please note that OSHA has made it clear that injuries and illnesses that occur during an employee's normal commute to and from work are not considered work-related, and, therefore not recordable. A normal commute is generally comprised of two legs, a trip from residence to work and a trip from work to residence. When an employee commutes to and from work, that employee is not at the work establishment, nor is that employee performing a work activity in the interest of the employer. See, the preamble to OSHA's January 19, 2001, final rule revising the recordkeeping regulation (66 Federal Register 5916 at 5960).

The scenario in your letter does not meet any of the work-related exceptions described above. At the time of the fatal accident, the employee was still in the process of traveling home from a work assignment that was approximately 300 miles away. Unlike a normal commute, which typically involves one trip from home to work and from work to home each day, the travel conducted by the employee was outside the employee's normal geographic area and required him to check into a hotel for several days. Also, at the time of the accident, the employee was not on a personal detour from the route of business travel and was not traveling to and from a hotel or motel to a permanent worksite. Instead, the employee had resumed his direct route of travel back to his home from the work assignment when the fatal accident occurred.

We note that the exceptions to work-relatedness in section 1904.5(b)(6) would apply in your scenario had the fatal accident occurred at a different point during the employee's travel. For example, had the accident occurred after the employee checked into the hotel and was commuting to and from the customer's worksite, the case would not be considered work-related. Likewise, had the accident occurred when the employee was traveling on the detour from his direct trip home to visit his relative, the case would not be considered work-related. However, in your scenario, at the time of the fatal accident, the employee was traveling on the same route he would have taken had he traveled directly from the customer's site back to his home. As a result, when the accident occurred, the employee was traveling "in the interest of the employer" and the case must be recorded on the OSHA 300 log. See, OSHA's February 12, 2015, letter of interpretation to Neil H. Wasser https://www.osha.gov/laws-regs/standardinterpretations/2015-02-12

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 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,

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