Adele L. Abrams, Esq., CMSP
With E-Recordkeeing Changes Pending, OSHA Updates Guidance on Commuter Injuries
Even as OSHA works on updating its 2016 E-recordkeeping rule for the second time, the agency is also clarifying via two Letters of Interpretation (LOI) how recording should be handled when a traffic accident is involved. In a new LOI dated January 4, 2022 (but only released in February), OSHA clarifies the issue of when a worker’s traffic accident is considered “work-related” and therefore subject to inclusion on OSHA’s mandated logs under 29 CFR Part 1904.
The question posed was whether an employee, injured in a collision while driving to the workplace to respond to an “emergency” after the end of the “normal workday” would be considered to have suffered a recordable injury. The agency response was that, while injuries and illnesses incurred during normal commuting from home to work, or work to home, are not considered work-related, and therefore are not recordable, this changes once the employee arrives at the work environment or starts traveling “in the interest of the employer.”
Because in the hypothetical offered, the traffic injury was incurred during a commute past the employee’s normal working hours, it would be considered work-related and therefore must be included on the OSHA 300 log of injuries and illnesses. This is because the employee had to return to the workplace outside of his normal commute and traveling was a “condition of employment.”
The January 2022 LOI follows a companion interpretation issued by the Biden OSHA in March 2021, where the question was whether a worker who was injured in a traffic accident during their commute, going from home or a hotel during a work trip, suffered a recordable event. In that LOI, OSHA said that “a hotel is considered a ‘home away from home’ for work safety purposes. Therefore, when such a “home away from home” is established, and the worker is reporting to a fixed worksite, the injuries/illnesses suffered while commuting between this “temporary residence” and the job location are not recordable.
OSHA’s E-recordkeeping rule was amended under the Trump administration, eliminating two critical reporting obligations (submission of the OSHA 300 and 301 logs electronically, for employers with 250 or more workers at a worksite). Litigation followed, and while the changes were upheld initially, the challenge continued. The Biden administration OSHA is now revising the standard again, presumably to restore the Obama version and potentially to clarify some whistleblower protections involving post-accident drug testing and also safety incentive programs. The information submitted by employers is now public-facing and searchable on OSHA’s website by employer name for calendar years 2016 through 2020. Submission of 2021 data was due by March 2, 2022.
The revised rule was sent to the OIRA office at the White House for approval in October 2021, but at press time was still awaiting clearance. OSHA had told the court in the pending appeal case that it expected to issue the proposed rule by February 14, 2022. That deadline has passed without any updates.