On Dec. 1, 2016, the Occupational Safety and Health Administration (OSHA) began enforcement of the anti-retaliation provisions of its controversial final rule on Recording and Reporting Occupational Injuries and Illnesses.¹OSHA has offered extensive guidance on its interpretation and enforcement of the new anti-retaliation provisions.²This guidance, along with the rule itself, addresses important issues relating to injury and illness reporting procedures, drug testing policies, safety incentive programs, and disciplinary programs.

The anti-retaliation provisions originally took effect on Aug. 10, but enforcement of these provisions was delayed twice by OSHA as a result of substantial industry pushback on the rule and a legal challenge from business groups.³ On Nov. 28, a federal district judge denied an injunction to block the rule on Nov. 28, allowing OSHA’s enforcement of the challenged provisions to begin on Dec. 1.⁴

A. Requirements for Employers Under the New Rule

First, an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting. When determining whether a procedure would deter or discourage a reasonable employee from reporting an injury or illness, OSHA suggests the following considerations:

The procedure should account for work-related injuries and illnesses that build up over time, have delayed effect, or do not initially appear serious enough to the employee to require reporting to the employer. A procedure that requires immediate reporting without accounting for these circumstances would not be considered reasonable.

The procedure should not make reporting so difficult or complicated that a reasonable employee would be discouraged from reporting an injury or illness. For example, if an employee must travel a significant distance to report or must report the same injury or illness multiple times to multiple levels of management, the procedure would not be considered reasonable.

Second, employers may not discharge or otherwise discriminate against employees for reporting work-related injuries or illnesses. Under the new rule, OSHA now has authority to issue citations to employers who take adverse action against employees for reporting incidents, even if the employee does not file a complaint. OSHA’s Preamble to the Final Rule interprets this anti-retaliation provision as prohibiting any “adverse action that could well dissuade a reasonable employee from reporting a work-related injury or illness.”

OSHA’s guidance to the new rule suggests that this provision will be enforced quite broadly, by applying it to possible “retaliation” in the form of disciplinary programs, safety incentive programs, and drug testing policies.

Drug Testing
The preamble and guidance for the new rule establish that OSHA will consider certain post-incident drug testing following an employee’s reporting of an injury or illness to be retaliatory in nature. According to OSHA guidance, employers may only conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness. However, if employee drug use could not have contributed to the injury or illness, post-incident drug testing may constitute prohibited retaliation. A blanket, one-size-fits-all drug and alcohol testing policy following any reporting of an injury or illness will likely violate the new rule. For suspected alcohol use, OSHA will also consider whether the test used is capable of measuring impairment at the time of the incident.The rule’s anti-retaliation provision does not apply to random drug testing, pre-employment drug testing, or drug testing required by any state or federal law. It also does not apply to drug testing required by an employer’s private insurance carrier, if such requirements mirror state workers’ compensation law.

Incentive Programs
While the new rule does not prohibit safety incentive programs, it could potentially restrict how such programs are operated. According to guidance on the new rule, OSHA may find some actions taken under some workplace safety incentive programs to be retaliatory. For example, if an employer tells employees it will hold a drawing for a cash prize at the end of each month in which no employee sustains a lost-time injury, and the employer subsequently cancels the cash prize drawing solely because an employee reports a lost-time injury, that program will likely violate the rule.

Disciplinary Programs
The new rule prohibits disciplining an employee who reports an injury or illness under the pretext that the employee violated a work rule. If an employer disciplines an employee who reports a work-related injury for violating a vague rule but does not similarly discipline other employees who do not report injuries, that disciplinary action will be considered retaliatory. Employers should review their workplace policies to ensure that workplace rules are sufficiently specific to serve as a basis for discipline regardless of whether a workplace injury occurs.B. Electronic Reporting Requirements Became Effective Jan. 1, 2017

The electronic reporting portion of the rule, which requires certain covered employers to submit data electronically to OSHA, went into effect on January 1, 2017. Pursuant to the electronic reporting provisions of the rule, OSHA will create a publicly available online database of work injuries and illnesses, which will identify employers but will not contain identifiable information about employees. The electronic reporting provisions have created new concerns for employers regarding the protection of employee privacy and how the data may be used by the media or business competitors.

C. State Occupational Safety and Health Plans Will Follow Suit

Employers should bear in mind that the anti-retaliation provisions of the new rule have only gone into effect in states where the federal government enforces the occupational safety and health laws. Some states manage their own occupational safety and health plans and enforce their own rules, which generally must be at least as protective as the federal rules. Many of these states have already adopted an equivalent to the new federal rule, and any remaining states will be required by OSHA to adopt a substantially similar rule within the next six months.

D. Conclusion

This rule has broad reaching impacts for injury and illness reporting procedures, drug testing policies, safety incentive programs, and disciplinary programs. Since the new rule allows OSHA to cite and penalize employers for violations of the rule even, in the absence of an employee complaint, this is a crucial time to reevaluate any company policies or procedures that OSHA could consider retaliatory.

Employers should carefully review their drug and alcohol testing policies to ensure that they comply with the new rule by ensuring that testing following a reported injury or illness only occurs when there is a reasonable possibility that drug use by the reporting employee was a contributing factor.

Employers would be wise to amend any policies that require employees to “immediately” report illnesses or injuries, as such policies must now allow for exceptions in circumstances where the injury or illness may not be immediately apparent.

Finally, employers with safety incentive programs should consider whether OSHA might view actions taken under the program as retaliation for reporting.

[1] 81 FR 29623; 29 CFR 1902 and 1904.

[2] U.S. Department of Labor, Interpretation of 19.04.35(b)(i) and (iv), Oct. 19, 2016, https://www.osha.gov/recordkeeping/finalrule/interp_recordkeeping_101816.html; U.S. Department of Labor, “Improve Tracking of Workplace Injuries and Illnesses-Employee’s Right to report Injuries and Illnesses Free From Retaliation,” https://www.osha.gov/recordkeeping/modernization_guidance.html.

[3] U.S. Department of Labor, OSHA Trade Release, “OSHA Delays Date for Enforcing Employees’ Rights to Report Workplace Injuries, Illnesses, June 13, 2016, https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=32802; U.S. Department of Labor, OSHA Trade Release, “OSHA Delays Enforcement of Anti-Retaliation Provisions of Injury and Illness Tracking Rule Until December 1,” Oct. 19, 2016, https://www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=NEWS_RELEASES&p_id=33315.

[4] TEXO ABC/AGC, Inc., et al. v. United States Sec’y of Lab., Civil Action No. 3:16-cv-01998-D, Mem. Op. & Order (N.D. Tex. Nov. 28, 2016).

February 9, 2017/by NCBARBLOG