Trent Cotney, Partner, Adams and Reese, LLP
You likely know that if one of your employees is injured while commuting to work, which is not a work-related issue, you do not have to record it on your Occupational Safety and Health Administration (OSHA) logs. However, based on a recent OSHA letter of interpretation, some travel injuries are recordable after all.
OSHA has long held that injuries that occur during a worker’s normal commute are not work-related. But the new letter has identified specific travel scenarios that are exceptions. If an employee travels as a condition of employment or in the interest of the employer, that makes the travel part of the work environment. So, any resulting injuries must be reported. What follows are some examples:
■ An employee travels from home or the workplace to another location during the workday to perform required work.
■ An employee is performing work-related tasks, such as telephone calls, as a passenger or driver.
■ An employee must make an additional, out-of-the ordinary return to the workplace and home again. (But if the return to the worksite is voluntary, any injury is not recordable.)
■ An employee must return to the worksite to handle an emergency.
■ An employee is not previously scheduled but is called into work unexpectedly (such as to help with a staffing shortage).
■ An employee is required to travel from place to place for sales calls or between jobsites.
■ An employee is traveling to a work-related meal either during lunch or after hours.
■ An employee is transporting other employees or customers for entertainment or other work-related events.
Note that the letter does not explicitly mention traveling out of town for work, but it stands to reason that such travel would be deemed work-related and any injury would be recordable.
It is critical that appropriate injuries are recorded on the OHSA 300 log. Currently, that log does not have to be submitted to OSHA but large employers (and certain small ones) are required to file the 300A summary each year. It is also possible that the Biden administration will eventually make filing the OSHA 300 log and Form 301 mandatory for large employers.
The OSHA 300A summarizes all recordable work-related illnesses and injuries that occur in a given year. It includes specific
injury and illness types, the total number of cases and the total number of days employees had to be away from work. It is crucial that the information is accurate. Any omissions may lead to OSHA citations. However, including unnecessary entries will increase the workplaces’ DART rate. That stands for “days away, restricted or transferred.” Higher rates can result in more OSHA inspections. They can also lead to increases in workers’ compensation premiums.
In the construction industry, travel from worksite to worksite is common. So is traveling from site to site for sales calls. As an employer, you must note any injuries or accidents that result from the type of travel and record them on the 300 log. Failure to do so could lead to trouble with OSHA down the road. If one of your workers has been injured during travel and you are unsure how to categorize that travel, take the time to get legal advice. When it comes to interpreting OSHA regulations, you never want to
make the wrong guess.
The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation. Trent Cotney is National Construction Team Leader for Adams and Reese, LLP and General Counsel for FRSA. For more information on this subject, please get in touch with the author at trent.cotney@arlaw.com.
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