When Are Work from Home (WFH) Injuries Recordable? We Answer Your Remote Work Questions
11/18/2021 | Phil Molé, MPH
When we do webinars and conference presentations on OSHA Recordkeeping compliance, we’re often asked about issues related to work-from-home (WFH) and remote work scenarios. These questions have become more frequent since the pandemic accelerated trends toward remote work, forcing employers to grapple with questions they may never have thought to ask before. When are WFH injuries recordable? How do they count days that employees spend working from home while recovering from injuries? Do they need to keep separate records for all remote worksites, and will OSHA ever inspect those worksites?
In what follows, we’ll take a deep dive into the Recordkeeping Standard to unpack some answers to these questions. We’ll also identify relevant guidance documents that shed additional light on these subjects, and point you toward some of our own helpful resources.
What Does the Recordkeeping Standard Say?
Let’s start by taking a closer look at the Recordkeeping Standard itself, and seeing what it has to say about WFH cases. In Section 1904.5 (b)(7), OSHA states:
“Injuries and illnesses that occur while an employee is working at home will be considered work-related if the injury or illness occurs while the employee is performing work for pay or compensation in the home, and the injury or illness is directly related to the performance of work rather than to the general home environment or setting.”
This section of the Recordkeeping Standard, which ranks with some of the more readable passages of regulatory text I’ve seen, then proceeds to give several hypothetical examples for clarification. For instance, if an employee working from home drops a box of documents and injures her foot, the case would be work-related because it occurred while she was doing work activities for her employer. The case would then be recordable if one or more of the recording criteria were met, such as needing to receive medical treatment.
Similarly, if a sewing company employee who sewed garments at home injured his finger with the sewing needle, got an infection, and was given a drug prescription as a result, the injury would be work-related and recordable because it occurred while performing work activities.
But now suppose that someone is working at home, but hearing the phone ring, leaps from his seat to answer it, trips and sustains an injury requiring medical treatment. This time, the injury would not be recordable. That’s because the employee was not in the process of working while he sustained his injury.
One way of distilling these take-aways is to realize that the employee’s home environment is, by default, their home. It’s only the work environment when they’re actually doing work. OSHA has reinforced this position in guidance documents such as letters of interpretation (LOI) issued over the years.
In a 2009 LOI, OSHA addressed the example of an employee who, while working remotely, hears her child crying outside and while rushing outside to check on what was happening, tripped and broke her leg. OSHA shared the regulatory text in 1904.5(b)(7), and explained that since the injury in this example was not “directly related to the performance of work rather than to the general home environment or setting,” the injury, as understandable as it is to any parent, is not work-related and therefore not recordable.
Of course, determining recordability for injuries and illnesses is only one of challenges employers face in interpreting how the Recordkeeping Standard applies to WFH or remote work situations. Let’s look at some of the other common issues, visiting relevant OSHA guidance along the way.
How Do We Count Restricted Days and Days Away from Work for WFH Situations?
On some occasions, employers will accommodate employees with recordable injury or illness by letting work from home rather than in the physical workplace. This often leads to confusion about how to count the days spent working from home on the OSHA 300 log. Per the Recordkeeping Standard, do employers need to count those days as restricted duty, days away from work, or neither?
OSHA addressed this issue in an interesting 2008 LOI that’s worth discussing in detail. The correspondent writing to OSHA described a scenario in which an employee whose job involved office clerical work injured her knee in a work-related accident. After she received out-patient surgery one month after the knee injury, her doctor released her to return to work with a note that she “may work at home."
The company set up a home workspace for her and forwarded her business phone to her personal phone number to facilitate her working from home while she recovered from surgery. The correspondent claimed that the employee did not work a full 8-hour shift while working from home, but otherwise was able to perform all of her routine job functions from home.
The question was, did the company need to count the days that the employee performed her clerical work from home as restricted duty, or as “days away from work?”
In their reply, OSHA noted that the answer would depend on what the employee’s normal work routine was. If the employee never worked from home as part of her normal work routine, then the accommodation to work from home would imply that she needs days away from work to recover, and the time should be counted as “days away.” If, on the other hand, the employee sometimes worked from home, then the employer should count her time spent working from home as “restricted duty” because the employee was still performing a normal routine, she just wasn’t working entire 8-hour days.
A big takeaway here is that there’s no one-size-fits-all answer to this question. It’s going to vary situation to situation based on the existing working arrangements, and employers will have to use their best discretion to make the determination based on the details relevant to them.
Are Remote Work Locations “Establishments” and Require Separate Recordkeeping Forms?
The nature of work was changing even prior to the pandemic, and now there is more remote work than ever before, especially involving multi-employer scenarios like contracted work. This raises many questions for employers covered by the Recordkeeping Standard. Do employers need to maintain separate records for all their work locations, and if so, where can they maintain them?
Before delving into OSHA’s guidance on this, we should review some basics about Recordkeeping Standard applicability, because they’ll be relevant to the rest of our discussion. Remember, the applicability of the standard is based on industry sector and on company size. So, if your company has a primary NAIC code that is not listed as partially exempt from Recordkeeping, and you had 11 or more employees during the reporting year, you’re covered by the Standard. And that, in turn means that you would need to determine work-relatedness and make recordability determinations for injuries and illnesses across all of your establishments.
But of course, an increasingly common challenge during the era of remote work is determining whether our worksites meet OSHA’s definition of “establishments,” and how to manage their records if they do. Let’s spend some time reviewing a 2014 OSHA LOI that addresses these questions.
In this LOI, a correspondent explained that they were a federal contractor whose employees work at several hundred remote locations operated by clients. The correspondent wanted to know if each site operated and controlled by a client where their employees were assigned was considered an "establishment" of the company for recordkeeping purposes. Additionally, the company representative wanted to know if they needed to maintain separate OSHA logs for each establishment, if they were permitted to maintain the records at corporate headquarters, and if they could electronically post the 300A summary form in lieu of posting a hard copy.
In their response, OSHA noted the definition of an establishment from the Recordkeeping Standard:
“An establishment is a single physical location where business is conducted or where services or industrial operations are performed. For activities where employees do not work at a single physical location, such as construction; transportation; communications, electric, gas and sanitary services; and similar operations, the establishment is represented by main or branch offices, terminals, stations, etc. that either supervise such activities or are the base from which personnel carry out these activities.”
Having established that definition, OSHA then clarifies that employers must keep a separate OSHA 300 log for each establishment that is expected to be in operation for one year or longer. So if a contractor has its employees working at a host site for one year or longer, that site would be an “establishment” and the company would need to maintain an OSHA 300 log. But if the worksite is a “short term establishment” that exists for less than one year, employers would need to keep injury and illness records, but would not need to do on separate OSHA 300 logs. The Standard allows them to either keep one OSHA 300 log covering all short-term establishments, or to include short-term establishment records in logs that cover various company divisions or geographic regions. If an employee works at multiple establishments instead of a single one, the employer would need to assign them to an establishment for recordkeeping purposes.
OSHA’s response also states that employers may maintain their injury and illness records for all establishments at their headquarters or other central location, rather than at the individual establishments. However, employers choosing to do this must ensure they can provide copies of injury and illness forms for all company establishments when requested by an OSHA representative, a current or former employee, or an employee representative.
Finally, addressing the issue of whether electronic posting of the 300A summary form is sufficient, OSHA stated that it is not. OSHA states that the employer must post a hard copy of the OSHA 300-A form at each of the company’s establishments in a conspicuous place where notices to employees are normally posted in the workplace.
Will OSHA Inspect Remote Worksites?
Since remote worksites can potentially be defined as “establishments,” it’s right towonder whether OSHA will potentially inspect remote worksites, including potential home offices. OSHA has addressed this question via a directive, stating that:
- They will not conduct inspections of employees' home offices.
- They will not hold employers liable for employees' home offices, and does not expect employers to inspect the home offices of their employees.
- If an employee makes a specific request, OSHA may informally let employers know of complaints about home office conditions, but will not follow-up with the employer or employee.
That covers office work, but what if the employee actually performs other work duties using equipment, such as sewing, repairs, or machining? The directive states that OSHA will only conduct inspections of such home-based worksites when they receive “a complaint or referral that indicates that a violation of a safety or health standard exists that threatens physical harm, or that an imminent danger exists, including reports of a work-related fatality.” But in those instances, OSHA would limit the scope of their inspection to the employee’s work activities – so OSHA inspectors won’t be looking under the mattress or poking around in the laundry room.
Home and remote worksite inspections can, of course, result in violations for the employer. The directive states that employers are responsible for hazards at home worksites caused by materials, equipment, or work processes which the employer provides or requires to be used in an employee's home. That’s because the general duty clause still applies, requiring employers to provide their employers with a workplace free from recognized hazards.
Did you get all that? If not, don’t worry, here’s a handy recap:
- WFH injuries are only work-related and potentially recordable, if the injury is directly related to work activities being performed. Therefore, injuries that occur in the home while the employee is not doing work would not be recordable.
- An “establishment” is a single physical business location where work is conducted.
- Recordkeeping Standard applicability is based on company size and industry sector. If a company is covered by the Standard, they need to keep separate OSHA forms for each “long term” establishment that exists for more than one year. Employers do not need to keep separate logs for “short-term” establishments that operate for less than one year, and can track recordable injuries and illnesses for those establishments on a single form compiling all short-term establishment records.
- Employers may not rely on electronic distribution to provide access to their 300A summary for employees working at remote worksites. They must post hard copies of the 300As at each of the company’s establishments in a conspicuous place where notices to employees are normally posted in the workplace.
- If an employee works from home as an accommodation while recovering from an occupational injury or illness, the employer would either count those days working from home as restricted or days away from work. The former applies if the employee already sometimes worked from home as part of the normal work routine, while the latter would apply if they did not.
- OSHA does not conduct inspections of home offices, but may conduct inspections of home worksites where employees perform non-office work. In that case, they’d limit their inspection to only those parts of the home associated with the work activities, and would not inspect the entire home.
- When inspecting a home worksite where non-office work occurs, OSHA will potentially hold the employer responsible for hazards caused by materials, equipment, or work processes that the employer provides or requires to be used for completion of work duties.
Looking for additional resources?
Check out our upcoming live webinar “OSHA’s Recordkeeping Standard: Your Guide to Compliance,” coming up on November 23 at 11am ET.
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