The Occupational Safety and Health Administration (OSHA) recently released enforcement guidance to its inspectors to determine when Active Release Techniques and stretching for employees, which are often used to prevent or reduce musculoskeletal disorders, are recordable under its injury and illness recordkeeping regulation. Employers that recommend stretching to reduce discomfort and pain will need to be mindful of whether OSHA views these treatments as recordable injuries.

Musculoskeletal disorders (MSDs) are the most common workplace injury. Employers frequently utilize Active Release Techniques (ART) [1] or develop suggested exercises as options for workers to alleviate discomfort, and these are often key techniques for preventing and treating work-related MSDs.

On May 2, 2024, OSHA issued a memorandum to provide enforcement guidance to compliance safety and health officers (CSHOs) on whether MSDs are recordable under OSHA’s injury and illness recordkeeping regulation, 29 CFR § 1904 (Recordkeeping Regulation), when first aid, ART, or exercises and stretching are recommended. Based on this new guidance, it appears that OSHA may target ART and stretching programs during its inspections to assess compliance with the Recordkeeping Regulation.

BACKGROUND

Employers are required to keep injury and illness records pursuant to OSHA’s Recordkeeping Regulation that document when an employee’s injury or illness results in death, days away from work, restricted work or transfer to another job, loss of consciousness, or medical treatment beyond first aid. It is important to remember that each criterion operates independently of the others. For example, if an employee's work-related injury is treated via first aid, but results in a work restriction, the injury would be recordable, even though the only treatment provided is first aid.

Another example the guidance provides is that if first aid is administered using ice for 15 minutes every hour, resting every hour, or elevating a body part, the case is recordable as restricted work, with one caveat—employers do not have to record restricted work activity if it was imposed only for the day on which the injury occurred.

The starting point in evaluating recordability is determining whether the case meets the regulation’s definition of “injury or illness,” which is an “abnormal condition or disorder.” See 29 CFR § 1904.46(3); See also OSHA’s January 25, 2010, letter of interpretation (LOI). An abnormal condition need not include objective signs, such as results from laboratory tests or medical evaluations, to be considered an injury or illness. Subjective signs, such as an employee statement that they feel pain, can be sufficient to determine that an abnormal condition exists.

Distinguishing between recommended stretching for soreness or discomfort (not recordable) or recommended stretching for an “abnormal condition or disorder” can be challenging. In fact, over the years, OSHA has issued conflicting letters of interpretation on the issue. OSHA’s May 2 memorandum appears to be intended to set forth the current administration’s position on what is considered “medical treatment beyond first aid” for recordkeeping purposes. OSHA’s recent memorandum should guide employers in the development and administration of their ART and stretching exercise programs.

FIRST AID

OSHA’s Recordkeeping Regulation provides a comprehensive list of first aid, such as using nonprescription medication at nonprescription strength, hot or cold therapy, massage, and drinking fluids. If an injured or ill employee is given any of the treatments listed, this treatment is not recordable, even—as OSHA’s May 2 guidance confirms—when such treatment is provided over a long period of time or involves multiple applications.

However, while OSHA states that it is not the number of times that first aid is provided that makes a case recordable, the guidance states that first aid generally does not involve multiple encounters with the same patient presenting the same concerns. The new guidance encourages CSHOs to scrutinize the care being provided to employees to ensure that the employer is not using repeated applications of first aid to avoid prescribing “medical treatment beyond first aid,” which would be recordable.

If a CSHO notices that first aid treatments are being repeatedly applied to the same worker who is presenting to the first aid provider with the same concerns, the CSHO is directed to investigate further using questions provided at the end of the guidance (these include “determine whether the same name and body part appears on the first aid log more than once in a four-week period” and “determine if the log reports that employees were referred to outside care”).

If the CSHO believes further medical treatment is needed but the employer repeatedly applies first aid only, the CSHO may issue a citation under the medical services and first aid standard (29 CFR § 1910.151(a)) for failure to determine whether further treatment is needed or make such consultation available to the employee.

ACTIVE RELEASE TECHNIQUES (ART)

In 2006, OSHA issued a LOI concluding that ART is “massage” and therefore first aid for purposes of OSHA recordkeeping. ART was also discussed in a 2019 LOI, which reiterated that ART is first aid, while “soft tissue massage” is not and therefore recordable. OSHA’s May 2 guidance empowers CSHOs to ask the employee or the ART-certified practitioner about the course of treatment to ensure that no other form of therapy is being provided, since other forms of treatment (such as chiropractic manipulation, physical therapy, or soft tissue massage) provided to the employee would be recordable.

EXERCISE AND STRETCHING

Exercise and stretching are not included on the “comprehensive list” of first aid treatments in 29 CFR § 1904.7(b)(5)(ii), which has resulted in conflicting opinions from OSHA as to whether its omission means that it is not first aid. Compare this 2014 LOI (stating that stretching recommendation upon report of discomfort was first aid and not recordable where the employee was encouraged to continue with an already existing program of stretching) with a 2011 LOI (stating that recommending exercise to an employee who exhibits any “signs or symptoms” of a work-related injury involves medical treatment and is recordable).

Where exercise or stretching is prescribed to treat a work-related injury or illness (e.g., written instructions on sets/reps and resistance), the exercise or stretching program constitutes medical treatment and the case is recordable—even if the employee exercises or stretches at home. While exercise and stretching that are generally part of safe work practices commonly recommended for any employee are not recordable as medical treatment, if stretching exercises were modified or changed to specifically address an employee's injury or illness, the case is likely recordable.

If an employee has an injury or illness that is not work related, (e.g., the employee is experiencing muscle pain solely from home improvement work), the administration of exercise and stretching does not make the case recordable. For exercise/stretching to be recordable, there must first be a work-related injury or illness to the employee. What is not contained in the new guidance is when the threshold is crossed to a sign or symptom of a work-related injury such that using stretching is beyond first aid and results in recordability of the case.

KEY TAKEAWAYS

Because this guidance empowers CSHOs to issue citations under the medical services and first aid standard (29 CFR § 1910.151(a)), employers should consistently monitor employees’ first aid and requests for medical care to ensure that employees are receiving appropriate treatment. Failure to determine whether further treatment is needed could result in a citation.

Exercise and stretching that are generally part of safe work practices can continue to be recommended for anyone engaged in certain tasks or working with certain equipment. However, based on the recent guidance, employer’s recommendations regarding stretching should be tied to purely precautionary measures that a worker can take.

In addition, employers should also monitor the frequency of stretching intended as first aid so that the stretching is not viewed as an indication that further necessary medical care is not being provided to an injured or ill employee (i.e., first aid treatment is not repeatedly applied to the same worker with the same concerns).

[1] ART is a patented movement-based massage technique that targets soft tissues such as muscles, tendons, ligaments, fascia, and nerves and is practiced by licensed healthcare professionals (usually a physical therapist or a chiropractor). OSHA considers ART to be first aid regardless of the professional status of the person providing the treatment.

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