In a recently published interpretation letter, the U.S. Occupational Safety and Health Administration (OSHA) opined that an employee’s gunshot injury—sustained when a motorist collided with three other cars, shot the employee-driver, and stole the company’s truck—was work-related and recordable.

A law firm asked OSHA whether a shooting injury sustained by its client’s driver was work-related, and specifically if “a continuous string of unforeseeable third-party criminal acts that injured, killed, and/or affected the general public over the course of several hours [would] be sufficient to rebut the geographic presumption of work-relatedness?” OSHA responded that the employee’s injury was work-related and therefore recordable, despite an absence of evidence that the driver provoked the motorist in any way. OSHA focused on the fact that the employee was present on the highway “as a condition of their employment” and was traveling “in the interest of the employer” as required by 29 CFR 1904.5(b), because the employee was driving a company vehicle and was traveling between service calls when the accident and shooting occurred. Consequently, OSHA concluded that the employee was in the work environment at the time of the injury.

OSHA went on to evaluate whether, in this case, an event or exposure in the work environment caused or contributed to the gunshot injury, as required by 29 CFR 1904.5(a). OSHA suggested that its approach to determining work-relatedness is based first on the causal relationship between the work and the injury. Citing the “but-for” test, OSHA suggested that a causal connection is usually established if the assault would not have occurred had the employee not been in the work environment when they were victimized. OSHA concluded that its recordkeeping regulation does not allow employers to exclude from their logs injuries and illnesses resulting from random acts of violence occurring in the workplace.

Secondly, OSHA explained that a “geographic presumption” applies to injuries and illnesses caused by events or exposures in the work environment. Therefore, such injuries and illnesses must be considered work-related unless an exception set forth in 29 CFR 1904.5(b)(2) applies. OSHA went on to note that the geographic presumption even encompasses events that are completely outside of the employer’s control, including lighting strikes. The recording of cases is not limited to those that are preventable or controllable, but rather they are recordable if they are “occupational.” OSHA considered its nine express exceptions to work-relatedness and concluded that its recordkeeping rule “contains no general exception, for purposes of determining work-relationship, for cases involving acts of violence in the work environment.”

Finally, OSHA cited a note to 29 CFR 1904.0, which states that recording or reporting a work-related injury, illness or fatality “does not mean that the employer or employee was at fault, that an OSHA rule has been violated, or that the employee is eligible for workers’ compensation or other benefits.” Rather, recording a case on an employer’s logs indicates only that (1) an injury or illness has occurred, (2) the case is work-related, and (3) the case is non-minor, i.e., it meets one or more of OSHA’s injury and illness recording criteria. OSHA applied all of these principles to find that the injury sustained by the driver was work-related under its recordkeeping standard.

OSHA’s guidance reflects a broad approach to work-relatedness and serves as a reminder to employers that OSHA will generally find an injury or illness to be recordable (and potentially reportable) unless the employer can demonstrate that a specific exception listed in 29 CFR 1904.5(b)(2) applies. This broad approach to recordkeeping warrants a careful examination by employers of their injury and illness logs to ensure that work-related cases are accurately captured, particularly in advance of OSHA’s electronic recordkeeping rule, which takes effect on January 1, 2024, and will provide OSHA with substantially greater visibility into many employers’ injury and illness data.  OSHA has been  evaluating employers’ OSHA 300 logs carefully during recent inspections and has been issuing citations for each instance there is an inaccuracy in the logs. Employers should audit and review their logs for accuracy and consistency prior to providing copies of their OSHA logs to OSHA during an inspection.