On May 12, 2016, the Occupational Safety and Health Administration (“OSHA”) issued a final rule (“Final Rule”) amending 29 C.F.R. § 1904.35 to improve tracking of workplace injuries and illnesses. The Final Rule seeks to increase the accuracy of reports by prohibiting retaliation and adverse action against employees that inappropriately deters or discourages employees from reporting work-related injuries or illnesses. Originally scheduled to take effect on August 10, 2016, OSHA recently announced that the Final Rule will take effect on November 1, 2016 in order to develop education materials and enforcement guidance for employers. The Final Rule is available here, and the correction to the Final Rule is available here. Some of the important provisions of the Final Rule are summarized below.

Summary of the Final Rule

Informing Employees of Their Right to Report Work-Related Injuries and Illnesses

The current regulation requires employers to inform employees how to report injuries or illnesses and how to report work-related injuries and illnesses. Under the Final Rule, and in addition to the current requirements, employers must inform employees of their right to report work-related injuries and illnesses without enduring retaliation from the employer and that the employer must not discharge or discriminate against any employee for reporting work-related injuries or illnesses.

Reasonable Reporting Procedure Must Not Deter or Discourage Reporting

The Final Rule amends the current regulation by implementing language requiring that the procedure for reporting work-related injuries and illnesses must be reasonable. Moreover, the Final Rule clarifies that the reporting procedure should not inappropriately deter or discourage employees from reporting the work-related injury or illness.

Prohibition on Employer Retaliation for Reporting Work-Related Injuries or Illnesses

The Final Rule explicitly prohibits retaliation against employees who report work-related injuries and illnesses. Section 11(c) of the Occupational Safety and Health Act (“OSH Act”) already prohibits such action. As such, this amendment does not create a new obligation for employers. However, adding this language to the regulation provides OSHA with an additional avenue for enforcement. Under section 11(c), the secretary is only authorized to take action against an employer who retaliates against an employee for reporting a work-related injury or illness if the employee files a complaint with OSHA within 30 days of the retaliation. Under the Final Rule, OSHA will be able to issue citations for employer retaliation against an employee who reported a work-related injury and illness and require abatement regardless of whether the employee filed a section 11(c) complaint. Although this amendment does not change employer obligations, it provides clear notice to employers and effectively promotes accurate recordkeeping.

The Reasonableness Requirement and Employer Policies

Ultimately, a reporting procedure is likely unreasonable under the Final Rule if it inappropriately deters or discourages employees from reporting injuries or illnesses or if it allows the employer to retaliate or engage in adverse action against the employee for reporting the injury or illness. OSHA has provided some guidance as to what constitutes an unreasonable procedure or policy in the commentary to the Final Rule.

Reasonable Timeframe

Although the regulations provide for prompt reporting, rigid reporting requirements, such as requiring immediate reporting of injuries and illnesses, are not always practicable and are thus unreasonable under the Final Rule. Many injuries and illnesses develop over time and are not always immediately apparent. OSHA has called for employers to account for injuries and illnesses that develop or build up over time, and injuries that initially do not appear serious enough to report in creating reporting requirements.

Discipline

Under the Final Rule, OSHA is permitted to issue citations to employers for disciplining employees for reporting injuries. The Final Rule does not prohibit disciplinary action for violation of legitimate safety rules; however, these rules cannot be vague, and the employer must not disproportionately discipline only those employees who report an injury or illness as a result of the violation.

Drug Testing

OSHA considers automatic drug testing of any employee who reports an injury unreasonable under the Final Rule. Drug testing is perceived as invasive and likely deters employees from reporting injuries. If drug testing does not provide results as to an impairment caused by a drug but rather shows use at some point in the recent past, it is unreasonable. The Final Rule does not require employers to have suspected drug use prior to testing the employee but rather requires that there is a reasonable possibility that drug use contributed to the incident that caused the injury before requiring the reporting employee to be tested.

Examples of circumstances in which drug testing is likely unreasonable and inappropriately deters or discourages reporting include:

  • Injury that is often caused by the intensity of the workload, physical aspects of the position or anything related to the work environment itself as opposed to workplace mistakes;
  • Injury caused by the natural environment, such as a bee sting;
  • Repetitive strain injury; and
  • Injury caused by equipment malfunction or lack of machine guarding.

The Final Rule will have no impact on workers’ compensation laws that require drug testing. Section 4(b)(4) of the OSH Act prohibits OSHA from superseding or affecting such laws. Employers will not violate the Final Rule for complying with any state or federal law or regulation. OSHA points out that attempting to prohibit such compliance would not serve the Final Rule’s purpose of prohibiting employer retaliation.

Employee Incentive Programs

OSHA warns employers to take caution when implementing employee incentive programs. Excluding employees who report injuries or illness from drawings for desirable prizes is likely to deter reporting. Further, if incentive programs require that all employees be free from injury or illness, employees may not report injuries out of fear of angering their coworkers who will be denied the prize because of their injury report. Incentive programs that deny prizes to only those who report injuries and illnesses are prohibited both under the Final Rule and section 11(c) of the OSH Act.

Employers are encouraged to review and revise their current policies and procedures to ensure reasonableness and compliance with the requirements of the Final Rule.