OSHA Issues CSHO Recordkeeping Guidance On Certain Musculoskeletal Treatments During Working Hours

On May 2, 2024, OSHA issued recordkeeping guidance that provides guidance to Compliance Safety and Health Officers (CSHOs) when the treatment given is first aid, Active Release Techniques (ART), and/or exercises and stretching. In particular, the enforcement guidance focuses on the use of those modalities during working hours to treat musculoskeletal injuries.

Though this enforcement guidance is consistent with guidance dating back to 2006, it does include several modifications of what employers have long understood to be OSHA's position with respect to treatment modalities identified by OSHA as first aid, administration of those modalities during the workday, and the use of ART.

Quick Hits

• OSHA regulations provide an exclusive list of treatments that can be administered without being considered more than first aid, and therefore not considered medical treatment for OSHA recordkeeping purposes.
• Recent guidance for Compliance Safety and Health Officers clarifies that first aid is the "initial care" and treatment of an injury and that the ongoing administration of these modalities is suggestive of the need for medical care or treatment beyond first aid.
• The guidance also states that the ongoing administration of first aid may be an effort on the employer's part to avoid "medical treatment beyond first aid" and recording the injury in their OSHA records.

"First aid is defined in 29 CFR 1904.7(b)(5)(ii) as:

• Using a non-prescription medication at nonprescription strength (for medications available in both prescription and non-prescription form, a recommendation by a physician or other licensed health care professional to use a non-prescription medication at prescription strength is considered medical treatment for recordkeeping purposes).
• Administering tetanus immunizations (other immunizations, such as hepatitis B vaccine or rabies vaccine, are considered medical treatment).
• Cleaning, flushing or soaking wounds on the surface of the skin.
• Using wound coverings, such as bandages, Band-Aids^®, gauze pads, etc.; or using butterfly bandages or Steri-Strips^® (other wound closing devices, such as sutures, staples, etc., are considered medical treatment).
• Using hot or cold therapy.
• Using any non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc. (devices with rigid stays or other systems designed to immobilize parts of the body are considered medical treatment for recordkeeping purposes).
• Using temporary immobilization devices while transporting an accident victim (e.g., splints, slings, neck collars, back boards, etc.).
• Drilling of a fingernail or toenail to relieve pressure or draining fluid from a blister.
• Using eye patches.
• Removing foreign bodies from the eye using only irrigation or a cotton swab.
• Removing splinters or foreign material from areas other than the eye by irrigation, tweezers, cotton swabs or other simple means.
• Using finger guards.
• Using massages (physical therapy or chiropractic treatment are considered medical treatment for recordkeeping purposes); and
• Drinking fluids for relief of heat stress."

For recordkeeping purposes, this list is considered the comprehensive listing of what constitutes first aid. No other or further treatments can be characterized as first aid, and these treatments can be administered an unlimited number of times without being considered more than first aid.

The enforcement guidance states: "In general, if an injured or ill employee is given first aid treatment, such as hot or cold therapy, massage, or some other treatment on the first aid list, that treatment should not be considered medical treatment for OSHA recordkeeping purposes, even when such treatment is provided over a long period of time or involves multiple applications."

The enforcement guidance then goes on to distinguish first aid as the "initial care" (emphasis in original) and treatment of an injury and that the ongoing administration of these modalities is suggestive of the need for medical care or treatment beyond first aid. Moreover, the enforcement guidance indicates that the ongoing administration of first aid may be an effort on the employer's part to avoid "medical treatment beyond first aid" and recording the injury in their OSHA records. In addition to potential recordkeeping issues, this enforcement guidance indicates that "repeated applications of first aid might indicate a violation of the medical services and first aid standard at 29 CFR 1910.151(a)."

Before the standard interpretation continued into an extensive discussion related to ART, OSHA advised employers—in what will likely surprise many—that these therapies administered during the workday result in restricted duty and an obligation to record the case as such. Many employees are given recommendations for the use of these modalities to treat work-related illnesses and injuries and employers often do not record those cases as the employee is receiving first aid and not medical treatment. This standard interpretation turns that practice on its head as OSHA says those cases are now restricted duty cases.

ART is a movement-based massage technique that is practiced by licensed healthcare professionals. ART practitioners receive a certification from Active Release Technologies, LLC. The company provides a special designation for practitioners that perform ART in the workplace, and those healthcare professionals agree to only perform ART in the workplace, to the exclusion of any other therapy their licensure may permit them to perform. Conditions treated with ART include shoulder impingement, tennis elbow, carpal tunnel issues, shin splints, neck pain, and back pain.

In 2006, OSHA concluded that ART was "massage" for purposes of OSHA recordkeeping and "first aid regardless of the professional status of the person providing the treatment." (Emphasis in original.) The enforcement guidance instructs CSHOs to interview employees who receive ART to ascertain whether the provider administered manipulations of the musculoskeletal system that exceeded the limits of what constitutes ART.

The enforcement guidance continues to clearly state that "exercise or stretching (i.e., therapeutic exercise) is not included on the list of first aid treatments in section 1904.7(b)(5)(ii)." OSHA considers those treatment modalities medical treatment when designed and administered (even if via a home exercise program) to treat a work-related injury and their use is to end when the signs or symptoms of the work-related condition end. Thus, when an employee exhibits symptoms of a work-related injury or illness, recommendations to engage in exercise and/or stretching, whether at work or home, make the case recordable. This guidance closes that direction with an indication that this is true regardless of the professional status of the person making the recommendation, although it would be reasonable to conclude that the person would need to be a licensed healthcare provider.

The enforcement guidance continues to give several examples of what does and what does not fall into the category of work-related exercise and stretching for CSHOs. That enforcement guidance also includes directions to CSHOs for records to review, including:

• "Determine whether the same name and body part appears on the first aid log more than once in a four-week period."
• "Determine the nature of the injury, progression of symptoms, and what treatment was recommended."
• "Determine if the log reports that employees were referred to outside care (e.g., urgent care, physician appointment, ER visit, ambulance called)."
• "Determine whether exercise was recommended for an injured employee or employees."

The enforcement guidance includes questions CSHOs might consider asking employers in the event there is a concern about the misuse of ART:

• "Do you have an exercise/stretching program in place for employees at the establishment?
• If the employer has such a program, ask:
  • When was the exercise/stretching program implemented at the establishment?
  • What does the exercise/stretching program entail/consist of?
  • How does the employer inform employees about the exercise/stretching program at the establishment?
  • Has the exercise/stretching program changed?
    • If so, document what the changes were.
  • Was there a change in the course of stretching exercises to address an employee's work-related injury/illness?
    • If so, what were the changes?
• Does your workplace have an onsite ART practitioner?
  • Does (s)he ever recommend work restrictions?
  • Do these have a start or end date?
  • Are they specific, focused on specific jobs or tasks?
  • Are these recommendations made to the first-line supervisor or higher levels of management?
  • Are they tracked in a written system, like an electronic log or hand-written notes?
  • Does the ART practitioner maintain a separate clinical log beyond the ART system where such restrictions are maintained?"

There is also a list of questions for the ART practitioner:

• "Are you currently licensed as a clinician in the State of ______?
  • If yes, in what profession (e.g., nurse, advanced practice nurse, chiropractor, physician, massage therapist, physician assistant)?
• Are you currently certified as an ART practitioner?
• Do you ever recommend restrictions from specific elements of the job?"

Last, there is a long list of questions for employees:

• "What symptoms did you experience that led you to seek care?
  • How long had the symptoms lasted before you sought care at the clinic?
  • What body part did they occur in?
  • Please describe your symptoms.
  • How long did your symptoms last (generally and after treatment)?
  • Did your symptoms go away after treatment?
  • Did your symptoms improve when you were off work?
• What did the first aid clinic do for the injury or pain that you experienced as a result of your job?
  • What medications, if any, were given?
  • What treatment or first aid did you receive?
• Have you gone to the first aid clinic for the same problem multiple times?
  • How many times?
  • How frequently/far apart were those visits?
  • Was the advice after the first visit the same or different?
• Were you sent to outside medical care, or offered the opportunity to see outside medical care?
  • If yes, how long did that take?
  • Was there a delay of more than a day in sending you out for care?
  • If you declined it, why?
  • Did a delay in appropriate treatment/referral for a work-related injury make your condition worse?
  • If so, how?
• Did your employer (including first aid personnel, or your manager) pressure or encourage you to not seek outside care? (Emphasis in original.) If yes:
  • What did that person say or do?
• Did you feel that there would be a negative consequence at your job if you saw an outside medical provider?
• Has it been recommended to you to do exercises or stretches to address an injury or pain that you experienced because of your job?
  • If the employee has been given such a recommendation, ask:
    • Who made this recommendation?
    • How often are you supposed to do these exercises/stretches?
    • How much time do you/did you spend doing these exercises/stretches daily?
    • Have you been instructed as to when you can stop doing these exercises/stretches?
    • If so, when were you told to stop?
      • Are these exercises/stretches different than exercises/stretches recommended for all employees you do/were trained to do daily for work (such as at the start of work)?
      • If yes, how are they different?
  • Do you know of anyone who has gone to the first aid station/clinic/medical office more than once for the same problem? Did that person seek outside medical care?
• Does your ART practitioner ever recommend work restrictions?
  • Do these have a start or end date?
  • Are they specific, focused on specific jobs or tasks?
  • Are these recommendations made to the first-line supervisor or higher levels of management?
  • Are they tracked in a written system, like an electronic log or hand-written notes?
  • Does the ART practitioner maintain a separate clinical log beyond the ART system where such restrictions are maintained?"

Currently, several emphasis programs include evaluating ergonomic and musculoskeletal issues and/or injuries in the subject places of employment. Given the common use of ART in those workplaces, covered employers might want to consider preparing for inquiries like those outlined in this enforcement guidance.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.