Earlier this year, the Occupational Safety and Health Administration (OSHA) signaled an intention to take employers to task for maintaining policies that required employees to immediately report workplace injuries and accidents or face discipline. OSHA considers such policies to be retaliatory and a violation of section 11(c) of the Occupational Safety and Health (OSH) Act. In addition, OSHA will likely also consider such policies to be a violation of the new anti-retaliation provisions under its recently published recordkeeping rule.
In February of 2016, the U.S. Department of Labor (DOL) filed suit against United States Steel Corporation (US Steel) in federal court in Delaware over its policy requiring employees to immediately report workplace injuries. The DOL’s complaint described two separate instances in which employees incurring an injury (a splinter in a thumb in one case and bumping a hard hat on a low-hanging beam in the other) failed to report the incidents to their supervisors until a few days later. US Steel suspended both employees without pay for five days for not following the company’s reporting policy. The DOL sought, among other things, an order compelling US Steel to rescind its reporting policy and an order prohibiting US Steel from adopting any injury-reporting rule that gives employees less than seven days to report an injury or illness.
On July 15, the DOL, US Steel, and the United Steelworkers union (which had joined the lawsuit) reached a settlement of the litigation. The settlement terms include:
- US Steel rescinded the discipline of the two employees and will give them back pay.
- US Steel rescinded the discipline of a third employee. The employee is not mentioned in the suit, but filed a whistleblower complaint against US Steel. US Steel will instead issue the third employee a written warning.
- US Steel rescinded its “immediate” injury reporting policy and agrees to “never” reinstate or enforce the policy.
- US Steel will immediately implement the following injury reporting policy at all of its locations and work sites:
- An employee who is at work when s/he becomes aware of an injury or illness must report it as soon as reasonably possible, but in no event later than leaving the plant or 8 hours after becoming aware of the injury or illness, whichever is earlier. The report must be made to the employee’s supervisor, or, if prompt medical attention is needed, to Emergency Services.
- An employee who is not at work when s/he becomes aware of an injury or illness must report it as soon as reasonably possible, but in no event later than 8 hours after becoming aware of the injury or illness. The employee must report the injury or illness by calling his/her supervisor or the applicable “Call Off” telephone number explaining that s/he is reporting a work-related injury or illness.
- No employee who complies with this policy will be disciplined for not promptly reporting an injury or illness.
Supervisors must not interfere with, or attempt to discourage, reporting under the policy.
- US Steel will also immediately implement the following incident-without-injury reporting policy (near misses):
Employees are required to report all Workplace Incidents without Injury in which they are involved, which they observe, or which they are aware of. Such Workplace Incidents without Injury must be reported as soon as reasonably possible, but in no event later than leaving the plant.
Reports must be made to the employee’s supervisor, or, if prompt emergency response is needed, to Emergency Services.
No employee who makes a good-faith effort to comply with this policy will be disciplined for not promptly reporting a Workplace Incident without Injury.
No employee will be disciplined under this policy for not reporting a Workplace Incident Without Injury if another employee has reported the same Workplace Incident Without Injury.
Supervisors must not interfere with, or attempt to discourage, reporting under this policy.
- The DOL agreed to not prosecute or pursue any civil administrative action or civil actions related to US Steel’s new policies, provided US Steel complies with all terms of the settlement agreement.
Practical Impact for Employers
The good news is that OSHA agreed to a policy that includes a significantly shorter reporting period than seven days. On the other hand, US Steel agreed to include a provision that provides for reporting only after an employee is “aware” of an injury or illness (both employees in the lawsuit claimed that they did not immediately report because they did not know they had been injured until later). How such an “indefinite” reporting obligation will play out remains to be seen—with questions of what it means for an employee to be “aware” of an injury or illness still to be answered.
While there is no guarantee that OSHA will apply the terms of this settlement to other employers going forward, the injury reporting policy hammered out in this settlement should provide employers with some idea of what any upcoming compliance guidance from OSHA will look like and what OSHA will accept as a minimally compliant injury reporting policy under OSHA’s anti-retaliation provisions.