If an injured employee requests a day off, is that Days Away?

When an injured employee get released to work, then requests a day off because of the injury, does that require recording days away on the OSHA 300 Log? Not necessarily.

An employee’s own decision to take a day off cannot change how a case gets recorded. Only the employer or a health care professional can impose restrictions or days away. However, if you agree that the worker needed one or more days off to recover from a workplace injury, then you must count that time as days away.

OSHA addressed these situations in a letter of interpretation dated March 22, 2011. In short, the letter explains that you make a determination on whether the employee “could have worked” or whether the employee needed the time off for recovery. If you decide that the injured employee could have worked, you don’t have to record day aways. However, if you agree that the employee needed time off, those employer-approved days off due to an injury creates a days away case.

Example illustrations

Suppose an employee suffered an ankle injury and was given restrictions that your company could accommodate. You expect him to show up for work the next day. The next morning, he calls in saying that his ankle is so swollen that he cannot put on a shoe, and he doesn’t think he can drive. He wants to take the day off. If you agree that he should take the day off to recover, you must record that as a day away.

Another employee gets a cut to his hand and visits a doctor. The doctor cleans and bandages the wound, but does not impose restrictions. The next day, the employee texts his supervisor, “My hand hurts so I’m staying home today.” Attempts to contact the worker for details yield no response. If you reasonably believe the employee could have arrived for work and performed all job duties, you do not have to count it as a day away on the OSHA 300 Log.

Making the determination

OSHA’s guidance for these situations is rather thin. The agency’s FAQ search page addresses two questions involving employees choosing to take days off. Both responses state that the employer “must make a good faith decision” on whether or not the injured worker needed the time off.

The letter of interpretation clarifies that how the employer records the time (as PTO or unexcused absence) doesn’t matter. The key is the employer’s determination of whether the employee needed time off, or whether the employee could have worked.

When making a “good faith decision,” you would likely consider the nature and severity of the injury. You will also need to rely on whatever information the injured worker provides. The employee might claim severe pain, or a reaction to a medication, or other reasons for taking a day off.

In addition, you might consider the injured employee’s work history. Does this person reliably come to work when scheduled, or does the injured worker have a history of calling in sick for unusual reasons?

Finally, remember that calling off work for reasons unrelated to the injury (such as car trouble or staying home to care for a sick child) would not require a determination on whether the employee could have worked. If the employee did not request time off “because of” the injury, then the absence would not count as days away.