Seyfarth Synopsis:To increase enforcement concerning workplace violence incidents, OSHA published a Standard Interpretation Letter concluding injuries resulting from workplace violence are recordable, even if the incident occurs outside of the workplace.

OSHA regularly issues letters or memoranda responding to questions from the public requesting interpretations of OSHA standards or regulations. Historically, OSHA will generate dozens of these Standard Interpretation Letters in a calendar year (including over 30 in 2021). This year, as we head into the last third of the year, OSHA has issued only two Standard Interpretation Letters.

In its only Standard Interpretation Letter this year analyzing OSHA's recordkeeping requirements, OSHA was asked whether an instance would be recordable when an employee traveling between service calls in a company vehicle, during worktime and on a public roadway, was involved in an accident with another driver, who then shot the employee, stole his truck and fled the scene. The employee neither said nor did anything to provoke the other driver, and, in fact, the non-employee driver was in the midst of a serial crime spree at the time of the accident.

Under these circumstances, OSHA concluded that the injury was presumed to be work-related unless an enumerated exception under the standard applied. Citing the preamble to the recordkeeping rule, OSHA reasoned the work-related "presumption encompasses cases in which an injury or illness results from an event at work that is outside the employer's control, such as a lightning strike, or involves activities that occur at work but that are not directly related to production, such as horseplay."

Significantly, the Standard Interpretation Letter stated that "OSHA's recordkeeping regulation does not allow employers to exclude injuries and illnesses resulting from random acts of violence occurring in the work environment from their recordkeeping forms." OSHA reached this conclusion even though the incident had occurred not at the worksite, but on a public highway, an area that historically has fallen within the Department of Transportation's jurisdiction.

OSHA now takes the position that even random acts of violence originating from individuals with no connection to the worksite or employer - e.g., robbers, active shooters, etc. - will be considered work related, and any injuries sustained as a result of these random acts must be recorded on an employer's OSHA 300 log. To the extent such incidents occur outside the workplace, OSHA will still consider them work-related if the incident occurs when an employee is engaged in a work-related task during work hours. For more information on OSHA record-keeping, workplace violence or any related topic please contact the authors, your Seyfarth attorney, or any member of theWorkplace Safety and Health (OSHA/MSHA) Team.

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