By James L. Curtis, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: An alcohol induced accident involving an intoxicated employee can be an OSHA recordable incident.

OSHA recently opined in an Interpretation Letter that, where an employee sustained an injury at work but the employee was found to be intoxicated from alcohol through a post-injury drug screen, if the incident met at least one of the general recording criteria in Section 1904.7, it is still an OSHA recordable incident.

The issue raised by the employer in this scenario related to Section 1904.5(b)(2)(vi), which provides an exemption to recording an injury “if the injury or illness is solely the result of personal grooming, self-medication for a non-work-related condition, or is intentionally self-inflicted.”  The employer asked whether, because the employee was intoxicated while at work and the intoxication arguably caused the injury, an employer is exempted from recording the injury.

OSHA said “no,” the employer was not exempted from recording this injury under Section 1904.5(b)(2)(vi) because, “in analyzing this question, [OSHA]…concluded that the intake of alcohol does not treat the disorder of alcoholism.  Instead, drinking alcohol is a manifestation of the disorder.  Accordingly, the injury described in the scenario above does not meet the exemption in Section 1904.5(b)(2)(vi) for self-medication.”

OSHA also noted that during the 2001 rulemaking to revise the recordkeeping regulation, several commenters suggested an exemption to “work-relatedness” for employees engaged in illegal activities, horseplay, or failure to follow established work rules or procedures such as being intoxicated while at work. In the preamble to the final rule (66 Fed. Reg. 5958, January 19, 2001), OSHA explained that “it would not adopt this exception because excluding these injuries and illnesses would be inconsistent with OSHA’s longstanding reliance on the geographic presumption to establish work-relatedness.”  Also, OSHA believed that many of the working conditions alluded to in the public comment involved occupational factors, such as the effectiveness of disciplinary policies and supervision.  Requiring employers to record these incidents, OSHA believed, “may serve to alert both the employer and employees to workplace safety and health issues.” Id.

This interpretation signals to employers that OSHA is still unwilling to deviate from its established exemptions to recording work-related injuries.