Unfortunately, accidents happen at work. No matter how thorough an employer’s training program may be and how much personal protective equipment an employer requires, employees still get injured.
Because injuries happen at work, OSHA requires employers to make first aid and medical services available to their employees. This article addresses OSHA’s first aid requirements, issues employers may encounter with first aid, and how first aid may implicate an employer’s recordkeeping obligations.
FEDERAL OSHA REQUIREMENTS
GENERAL INDUSTRY REQUIREMENTS
Under OSHA’s General Industry medical and first aid regulation, employers must ensure that either medical treatment for all injured employees is in “near proximity” or that a person at the workplace is “adequately trained to render first aid.” See 29 CFR 1910.151(b). In other words, if medical services (e.g. a hospital) are not close by, then employers must ensure that someone at the workplace has first aid training.
Naturally, the most common question employers have is, “what is ‘near proximity?’” The answer is, it depends. OSHA takes the position that “near proximity” in cases of serious hazards and injuries — such as falls, suffocation, electrocution, or amputation, and stopped breathing, cardiac arrest, or uncontrolled breathing — means a 3-4 minute response time. For employers in lower-hazard settings, such as offices, OSHA has stated that a up to a 15 minute response time could be acceptable. Thus, “near proximity” depends primarily upon what types of injuries an employer can reasonably expect in the workplace, but other relevant factors include the location of the workplace, how much time it takes to reach medical attention, traffic and weather, geographic distance from medical care, travel distance from medical care, whether employees are provided with a means of calling for help in an emergency (e.g. a phone to dial 911), whether employees have a means of transportation available, and whether the employer has notified or made arrangements with local emergency response units.
Employers should consider what types of injuries could be reasonably anticipated at their worksites in addition to the other factors noted above. Part of this analysis can include evaluating OSHA 300 Logs and worker’s compensation claim histories at the worksite. If an employer determines that medical services are not in “near proximity,” then first aid training must be provided to ensure that someone with such training is available during all shifts.
First aid training is typically provided through organizations such as the American Red Cross or private institutions, and refers to medical attention that is typically administered immediately after an injury occurs. It usually consists of one-time, short-term treatment and requires minimal technology and training, such as cleaning minor cuts, treating minor burns, applying bandages, and using non-prescription medicine. First aid does not include:
- CPR, but many employers choose to offer CPR training.
- Automated external defibrillators (AEDs), but employers should consider providing them in the workplace given their life-saving capabilities.
Moreover, Good Samaritan laws, as well as, in some jurisdictions, the worker’s compensation laws, throughout the country serve to protect employees from potential liability in connection with the use of AEDs. If an employer chooses to provide an AED in workplace, it should be sure employees are trained on how to operate the device in accordance with state law. Regardless of the topics covered by an employer’s first aid training, employers should make sure training consists of documented written and practical tests.
Employers should also ensure that first aid training is tailored to the worksite. For example, if employees work outside, then first aid training should include how to treat injuries arising from temperature extremes, such as how to respond to heat exhaustion and heat stroke. The training program should be periodically reviewed and updated with current first aid techniques and knowledge. Employers should remember that first aid certificates typically expire after several years. OSHA recommends that employees receive first aid skills and knowledge re-training and updated certification cards every three years.
OSHA’s General Industry medical and first aid regulation also mandates employers to ensure that “adequate first aid supplies [are] readily available” in the workplace. See 29 CFR 1910.151(b). Employers should be mindful that the meaning of “adequate” depends on the workplace. Accordingly, employers should evaluate the kinds of injuries that occur in their workplaces when deciding on the contents and quantity of materials in a first aid kit.
Another important facet of first aid pertains to its location. The first aid kit must be “readily available,” i.e. easy to access in the event of an emergency. This issue is often relatively simple at fixed facilities, but can become more complicated when employees work off-site or drive in company vehicles. In situations like these, employers cannot forget that a first aid kit should be “readily available.” Accordingly, if employers have, for example, delivery truck drivers, it is recommended that these employers equip their trucks with first aid kits.
A question that many employers ask is how to prepare for injuries that may occur due to an employee’s pre-existing and/or unknown health condition, such as an allergy, epilepsy, or a cardiovascular condition. It is essential for employers to remember that requiring employees to disclose health information can run afoul of the Americans With Disabilities Act. Employers can, however, request employees to voluntarily inform their supervisors if they feel that they cannot safely perform a certain job or task because of a health condition, and also to immediately report when they feel ill or have been injured. This can help employers pre-plan for potential emergencies. If employers encourage self-disclosure, they should be mindful to avoid asking employees about the actual health conditions beyond what is necessary to take action to protect the employee’s health and safety.
OSHA’s Construction standards require many of the same first aid requirements discussed above. For instance, the Construction standards require that an employee at the worksite be trained in first aid when medical care is not “reasonably accessible.” See 29 CFR 1926.50(c).The Construction standards also require that first aid materials be “easily accessible.” See 29 CFR 1926.50(d)(1).
However, unlike the General Industry standards, the Construction standards requires that the first aid materials be: (a) stored in a “waterproof container;” (b) each item contained in the container is individually sealed; (c) the employer checks the first aid kit every time the kit is sent to a worksite; and (d) while on the worksite, the first aid kit is checked at least weekly to ensure used items are replaced. See 29 CFR 1926.50(d)(2).
The Construction standards also require that when an employer is unable to contact an ambulance service, the employer must provide equipment for the “prompt transportation” of an injured person to a physician or hospitality (i.e., backboard and vehicle). See 29 CFR 1926.50(e). Further, on worksites where employees may be exposed to corrosive materials, the employer is required to provide “suitable facilities” for the quick drenching or flushing of the eyes and body for immediate use. See 29 CFR 1926.50(g). Thus, the question is what a “suitable facility?” In short, if the facilities are insufficient to treat an exposed employee for the particular corrosive materials, the facilities are non-compliant.
In addition to Federal OSHA’s first aid requirements, employers must be aware of state-specific requirements that may impose additional obligations upon employers. For instance, under California OSHA’s General Industry Safety Orders, an employer’s first aid materials must be “approved by [a] consulting physician” and that approval must be in writing. See Cal-OSHA GISO § 3400(c). Thus, Cal-OSHA requires employers subject to its General Industry Safety Orders to “consult” with a physician in evaluating what materials to include in their first aid kits.
Employers must also be wary of what materials they include in their first aid kits. For instance, many employers make available to employees single-dose medications (i.e., Tylenol or Advil). However, under Cal-OSHA’s Construction Safety Orders, if an employer has more than basic first aid equipment in its first aid kit (i.e., bandages), such as “drugs, antiseptics, eye irrigation solutions, inhalants, medicines or proprietary preparations,” that additional equipment must be approved, in writing, by an employer-authorized licensed physician. See Cal. Osh. CSO § 1512(c)(3).
These are just two examples of state-specific requirements that employers may face with regards to their first aid kits. Accordingly, employers should evaluate what states they do business in to determine what additional requirements, if any, they must follow to avoid potential liability.
FIRST AID AND OSHA RECORDKEEPING
Employers should be aware how the type of first aid or medical treatment provided to employees can implicate their recordkeeping obligations. OSHA requires employers to maintain OSHA 300 Log, and supporting 300A and 301 documents for all work-related illnesses and injuries. Relevant to the current discussion, OSHA deems a work-related injury or illness to be recordable, in part, when the employee receives medical treatment beyond first aid. See 29 CFR 1904.7(b)(1)(iv). Though OSHA’s recordkeeping regulations define the terms “medical treatment” and “first aid,” the distinction between the two can be confusing. For instance, suppose an employee injures his or her knee while on the job and sees the company nurse or physician. If the medical professional gives the employee “a non-prescription medication at non-prescription strength” (i.e., two Tylenol pills), then that would be considered first aid and the injury would not be recordable. However, if the medical professional gives the employee three Tylenol pills instead of two, OSHA may find that the employee received “medical treatment” because the employee received a “prescription strength” dose.
Other examples where the line between “first aid” and “medical treatment” can be crossed include:
- The use of oxygen, even if precautionary;
- The use of numbing or antibacterial eye drops;
- The use of certain skin creams;
- The use of rigid versus non-rigid splints; and
- The use of medical glue to close a cut.
To avoid potential liability related to first aid, an employer should consider the following actions:
Conduct a job hazard analysis of the facility or worksite to determine what hazards exist and what injuries or illnesses could arise;
Once the job hazard analysis has been completed, consider what type of first aid materials should be maintained at the facility or worksite;
If the employer is located in California or another state that requires physician consultation, consult with a physician regarding what materials should be included in the first aid kit and obtain verification of that consultation in writing;
Evaluate what medical services are reasonably accessible to the facility or worksite. If medical services are not reasonably accessible, the employer should provide documented first aid training to a select group of employees at the facility or worksite and ensure coverage throughout the entire workday, including the off-shift;
Develop a written procedure that documents the company’s first aid procedures and mandatory employee first aid training and re-training;
Ensure that the first aid certifications of the first aid providers are current; and
Evaluate the type of treatment employees receive in response to a work-related injury to evaluate whether the injury must be recorded in the OSHA 300 Log and supporting 300A and 301 documents.
If an employer undertakes these actions, it will minimize its potential liability as it relates to first aid and its implications.