In a recent interpretation letter, an employer posed the following scenario and question to OSHA:

As the result of a workplace accident resulting in an injury to an employee that required medical treatment, a post-accident drug and alcohol test was administered. The alcohol test revealed the injured employee was intoxicated. “Does this injury meet the exemption in Section 1904.5(b)(2)(vi), given the worker was self-medicating with alcohol for his non-work related condition of alcoholism?”

Under OSHA’s recordkeeping requirements, section 1904.5(b)(2)(vi) states “You are not required to record injuries and illnesses 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 inquired whether alcohol could be considered self-medication and therefore meets the exemption for work-relatedness. OSHA determined that the exemption did not apply, stating, “The [Office of Occupational Medicine and Nursing] physicians 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 exception in Section 1904.5(b)(2)(vi) for self-medication.”

Additionally OSHA noted that it did not adopt an exemption in the final rule for “employees engaged in illegal activities, horseplay, or failure to follow established work rules or procedures” because doing so was inconsistent with the agency’s position on the geographic presumption for work-relatedness. And, “recording such incidents may serve to alert both the employer and employees to workplace safety and health issues.

 

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.