On July 13, 2016, the Occupational Safety and Health Administration (“OSHA”) announced that it would delay the enforcement of the final rule, which is designed to improve workplace safety reporting, from the originally scheduled effective date of August 10, 2016 to November 1, 2016. The final rule requires employers to (1) inform employees of their right to report work-related injuries and illnesses free from retaliation, and (2) establish a reasonable procedure for employees to report work-related injuries and illnesses. The final rule also explicitly prohibits discrimination against employees for reporting work-related injuries or illnesses.
Employers are well advised to become familiar with the far-reaching nature of the final rule. Specifically, employers should be aware that they could be subject to OSHA citation, if the agency determines that the policy for reporting work-related injuries and illnesses is unreasonable.
Under the final rule, employers are required to inform employees 1) that they have a right to report work-related injuries and illnesses, 2) and that they could not be discharged or in any manner discriminated against for reporting work-related injuries and illnesses.
Reasonable Reporting Procedure Requirement
The final rule requires that employers establish a “reasonable procedure” for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.
The preamble to the final rule sheds some light on what procedures could be deemed “unreasonable.” If a procedure requires too many steps to report work-related pain to management, it could be held as unreasonable. If a procedure imposes rigid prompt-reporting obligations on employees, it is likely to be unreasonable. For example, a policy requiring immediate reporting of work-related injuries, and if a failure to do so will result in discipline would be deemed unreasonable.
The final rule explicitly incorporates prohibition on retaliation against employees for reporting workrelated injuries or illnesses. Section 11(c) already imposes such obligation. However, the final rule provides OSHA an enhanced enforcement tool because Section 11(c) only authorizes OSHA to take action against an employer for retaliating against an employee for reporting a work-related illness or injury if the employee files a complaint with OSHA within 30 days of the retaliation, whereas the final rule allows OSHA to take action regardless of whether an employee filed a complaint with OSHA or not.
The preamble to the final rule explicitly states that the final rule prohibits employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. OSHA's rationale for such a rule is OSHA's belief that blanket post-injury drug testing policies deter proper reporting. However, if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer's motive would not be retaliatory and the final rule would not prohibit such testing.
Prior to the effective date of November 1, 2016, employers are encouraged to review their existing Workplace Injury/Illness reporting procedures with legal counsel to determine whether the procedures are reasonable and prepare to train employees on the reporting procedures and their rights.