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The Cohen Group Newsletter - Volume 18  Issue 1, Article 6.  January 2007

When Is A Medical Facility in "Near Proximity"?
By Joel Cohen, CIH

Cal/OSHA conducted a complaint inspection of a Rite Aid retail store located in Southern California. The store was cited by Cal/OSHA for several alleged violations, one of which was for no medical facility in near proximity and no one trained to render first aid. The violation was classified as "general" because it was unlikely that serious physical harm or death would result. The California Code of Regulations, Section 3400, "Emergency Medical Services" requires employers to have a first aid-trained person at the workplace if there is no medical facility in "near proximity." This requirement only applies to fixed workplaces and not construction sites. That is, first aid-trained personnel are required to be present at every construction worksite, regardless of whether a medical facility is located close to the work. The question raised with this citation was: if a Rite Aid employee was injured, could timely medical aid be provided by a close-by medical facility?

The corporate entity of Rite Aid appealed the citations, including the alleged violation of Section 3400(b). During the appeal, the Division testified that no Rite Aid employees at the store were trained to provide first aid. The employer testified that a hospital was located within a 12 minute driving time (which was confirmed by the compliance officer) and therefore medical aid was present within "near proximity." The Division stated that an interpretive letter from a former Cal/OSHA chief stated that "near proximity" meant within 4 to 10 minutes of the workplace. The Division further stated that the American Red Cross recommended having first aid available to an injured employee within 3½ to 4 minutes. Fed/OSHA has a safety standard similar to Section 3400 with similar language [29CFR1910.151(b)]. Fed/OSHA has interpreted the "near proximity" phrase in its standard to "allow a 15 minute response time…when a life-threatening injury is an unlikely outcome of an accident." It was also interesting that a fire station was located directly across the street from the store. The Division argued that there was no assurance that the fire fighters, who are trained in first aid, would be available to render aid if needed.

The Administrative Law Judge (ALJ) determined that the Division failed to prove the violation. The ALJ acknowledged that a 3 to 4-minute response time was reasonable for a life-threatening injury. However, she concluded that the work performed by employees at Rite Aid would not likely result in such an injury and that a medical facility, such as a hospital that was 10 to 12 minutes away, could be considered "in near proximity" under the Division’s interpretation, as well as deemed acceptable using Fed/OSHA’s interpretation of 15 minutes away.

So, when is a medical facility in "near proximity"? If the possible injuries may be of a serious or life-threatening nature, 3 to 4 minutes seems to be everyone’s acceptable timetable. However, in a workplace where such severe injuries are unlikely, "near proximity" may mean a travel time of 10 to 12 minutes.