The Occupational Safety and Health Administration (OSHA) recently sent its proposal to amend the recordkeeping regulation, 29 CFR Part 1904, to the Office of Information and Regulatory Affairs (OIRA)—a necessary step in the process of finalizing the proposal. OSHA proposes requiring some employers to submit injury and illness data electronically. The proposal’s requirements depend upon the size of the establishment and break out as follows:
- Establishments with 250 or more employees would electronically submit OSHA 300 logs and 301 forms quarterly, and OSHA 300A forms annually.
- Most other establishments—depending on NAICS code—would electronically submit OSHA 300A summaries annually.
- OSHA is considering an “enterprise” reporting requirement through which establishments in certain industries would electronically report even if they do not meet the 250-employee threshold. For example, a retail chain with 20 stores that each employ 100 employees may be required to submit OSHA 300 logs and 301 forms for each establishment electronically.
OSHA plans to make the data submitted by employers available on its website. As we have previously discussed, this information would be of great benefit to union organizers and plaintiffs’ attorneys.
OSHA Becomes the EEOC?
Even more concerning, OSHA re-opened the rulemaking record to solicit comments on how to avoid intentional under-reporting from employers. Based mostly on comments from labor unions, OSHA speculated that since OSHA 300 logs and 301 forms would be publicly available, employers would actively look for ways to discourage employees from reporting work-related injuries and illnesses. Because of these concerns, OSHA suggested that anti-retaliation provisions be added to the recordkeeping regulation (although no specific language was proposed).
Examples of retaliation listed in the rulemaking proposal included:
- requiring an employee who reports an injury to undergo drug testing automatically even if the employer does not have a reasonable suspicion of drug use;
- depriving employees (either individually or as a group) of a bonus because of a work-related injury or illness;
- disciplining an employee who has been injured after violating a safety rule without being able to produce evidence that other employees have been disciplined for violating the same rule; and
- selectively enforcing vague safety rules against employees who report an injury.
Engaging in this type of conduct would constitute a violation of the recordkeeping regulation. For example, an employee could tell OSHA that she was discharged after an injury resulting from a fall because she was not wearing the required fall protection equipment. OSHA could allege that uninjured employees were not disciplined for failing to wear fall protection, and that the employer’s action was therefore retaliatory. To abate the alleged violation, OSHA could require the employer to reinstate the employee and pay her backpay.
In other words, OSHA inspectors would become akin to Equal Employment Opportunity Commission (EEOC) investigators. Specifically, OSHA would be ascertaining an employer’s motive in issuing discipline to determine whether to issue citations alleging violations of the recordkeeping regulation. EEOC investigators evaluate whether an employer had a non-discriminatory reason for imposing discipline on an employee who is a member of a protected class. In the case of an OSHA inspection, the protected class would be injured employees, and OSHA would determine whether the employer imposed discipline to retaliate against an injured employee or for a neutral, non-discriminatory reason.
OSHA Sets the Stage With Whistleblower Guidance
On November 6, 2015, OSHA published draft, non-mandatory compliance guidance entitled Protecting Whistleblowers: Recommended Practices for Employers for Preventing and Addressing Retaliation. The draft is based on recommendations from the Whistleblower Protection Advisory Committee and contains the following “key steps to creating an effective anti-retaliation program”:
- “Ensure Leadership Commitment”: Elements of this step include providing a “mechanism for accurately evaluating employees’ willingness to report” safety concerns and the employer’s “actual record in preventing retaliation against employees who report” their concerns.
- “Foster an Anti-Retaliation Culture”: Implementing this element requires “[e]liminating all formal and informal workplace incentives that encourage or allow retaliation or discourage reporting,” such as “rewarding employee work units with prizes for low injury rates or linking supervisory bonuses to lower reported injury rates.” (OSHA has been pressing employers to eliminate incentive/disincentive programs since issuing compliance on this topic in March of 2012.OSHA has since amended its Field Operations Manual—the instruction manual for OSHA compliance officers—to include the guidance on incentive/disincentive programs.) Also, employers must follow through on employee concerns “even if they appear to be trivial,” “[g]uarantee that employee rights are protected even if the person is incorrect or unpleasant in raising a concern,” and provide “ways for employees to get unbiased, confidential advice about exercising whistleblower rights and coping with the stress of reporting concerns.”
- “Implement a System for Responding to Reports of Retaliation”: The reporting system should include “employee confidentiality, to the extent practicable, along with rumor control in order to protect the reporting party from further retaliation” and the use of “third-party, independent investigators” where possible.
- “Conduct Anti-Retaliation Training”: The training should be conducted for all leaders, managers, and employees, and include “[s]kills for defusing conflict,” “[h]ow to separate, if present, annoying or inappropriate behavior from the concern itself,” and “[c]onsequences for managers who fail to follow anti-retaliation policies and respond to concerns inappropriately.”
- “Monitor Progress and Program Improvement”: Employers should audit the process and work with “employees and bargaining unit leaders (if any) on the elements of the audit.”
Comments on the draft compliance guidance are due on January 19, 2017.
Why Did OSHA Publish This now?
The timing may be coincidental, but OSHA may also be setting the stage for requiring employers that are cited under the anti-retaliation provisions in the revised recordkeeping regulation to implement the provisions as abatement for an alleged violation.
Why Did OSHA Request Public Comment?
It is fairly unusual for OSHA to request public comment on compliance guidance. OSHA may have taken this step to add credibility to the compliance guidance, which may make it easier for OSHA to force it on employers as feasible abatement to remedy a citation alleging a violation of the anti-retaliation provisions anticipated in the amended recordkeeping regulation.