Posted: January 21, 2010

Question: We had an employee who hurt his shoulder at work, and he waited two weeks to report the incident.  Now, we have decided that this injury is work-related and have given the employee restrictions to his normal work routine.  Is there a grace period for which we do not have to record the event if the employee waits to report the incident to us?

Answer: There is no grace period given when an employee fails to report an injury in a timely manner to management.  According to paragraph 1904.5(b)(5), an injury or illness is considered to be a pre-existing condition only if it resulted from a non-work related event or exposure that occurred outside the work environment.   However, no citation for violation of the regulation can be issued in the absence of evidence that that employer knew or should have known of the injury.

Question:  We had an employee who hurt her knee in our cafeteria.  She has a history of knee injuries.  The injury occurred when she fell as she was carrying her lunch tray.  She was wearing high heels, which is against company policy, and was distracted by waving and calling out to her friends.  She was obviously not acting in a safe manner. Can we use the work-related exception §1904.5 (b)(2)(iv) for eating, drinking or preparing food or drink for personal consumption so that we will not have to record this case on our OSHA logs?

Answer: No. You cannot use the exception because she was not eating, drinking or preparing food or drink at the time of the injury. She was walking around in the on-site cafeteria.  The rule of geographic presumption, §1904.5 (a) states:
You must consider an injury or illness to be 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 overexposures occurring in the work environment, unless an exception §1904.5 (b)(2) specifically applies.

Question: We are in a hospital setting and are wondering when we have to record work-related cases of H1N1 influenza (swine flu)? Also, if we give a prophylaxis to employees, are those cases recordable?

Answer: According to OSHA's directive for H1N1 for health care  workers, illnesses due to the 2009 H1N1 influenza are not considered  to fall under the exception for the common cold or seasonal flu (§1904.5 (b)(2)(viii));  cases  of H1N1 influenza are recordable for OSHA injury and illness recordkeeping under the following circumstances:
 (1) The case is a confirmed case of 2009 H1N1 illness as defined by the CDC;
 (2) The case is work-related as defined by 1904.5; and
 (3) The case involves one or more of the recording criteria set forth in 1904.7 (e.g., medical treatment, days away from work).
Reference:  OSHA's CPL # 02-02-075, Enforcement Procedures for High to Very High Occupational Exposure Risk to 2009 H1N1 Influenza, p.12. It is available on the Internet at: www.osha.gov/OshDoc/Directive_pdf/CPL_02_02-075.pdf
If a prophylaxis such as Tamiflu® or Relenza® is given to an employee who has work-related exposure to 2009 H1N1 influenza, but is not showing signs or symptoms of illness, it is not considered to be medical treatment.