For many years the Occupational Safety and Health Administration (OSHA) has expressed significant concerns regarding its belief that regulated employers have been underreporting employee injuries or illnesses to OSHA and even dissuading employees from reporting injuries or illnesses to employers. On May 12, 2016, OSHA issued controversial new regulations (May 2016 Regulations) requiring employers to establish reasonable procedures for reporting work-related injuries or illnesses (Reporting Regulations), and prohibiting employers from retaliating or taking adverse action against employees who report work-related injuries or illnesses (Anti-Retaliation Regulations). 29 C.F.R. 1904.35(b)(1)(i) and (iv).

Immediately thereafter many employers raised questions regarding how the new regulations might apply to existing employment policies and procedures. OSHA twice-delayed its enforcement of these new provisions as a result, and enforcement will begin on December 1, 2016. See OSHA Trade Release (Oct. 19, 2016).

Further, in an attempt to respond to questions from employers and possibly to mitigate litigation brought by industry (e.g., TEXO ABC/AGC, Inc., et al. v. Perez , No. 3:16-cv-1988-D (complaint filed July 8, 2016), on October 19, 2016, OSHA issued a memorandum providing guidance on its new Reporting Regulations and Anti-Retaliation Regulations. See Interpretation of 1904.35(b)(1)(i) and (iv) (Oct. 19, 2016) (October 2016 Guidance). While the new guidance further elaborates on discussions provided in the preamble to the May 2016 Regulations and provides examples of the types of employer policies and procedures OSHA would likely deem acceptable, the guidance information is not enforceable as law. Moreover, the May 2016 Regulations continue to provide OSHA inspectors with significant discretion to question employer motivations and to bring enforcement actions even when an employee does not allege that his or her employer engaged in discriminatory conduct.

At best, OSHA’s new guidance sets forth specific examples of disciplinary, drug testing, and incentive policies, as well as OSHA’s view on whether application of such employer policies would likely constitute a violation of the May 2016 Regulations. Below we provide an overview of OSHA’s guidance.

  1. Reasonable Procedures for Reporting Work-Related Injuries and Illnesses (Section 1904.35(b)(1)(i))
    As part of the May 2016 Regulations, OSHA specifically requires that employers implement reasonable procedures for employees to follow when reporting work-related injuries and illnesses. What is “reasonable” is unclear. Through the October 2016 Guidance, OSHA now has clarified that an employer’s reporting procedure is reasonable if it (1) is not unduly burdensome; and (2) would not deter a reasonable employee from reporting. OSHA has opined a “rigid” prompt-reporting requirement could be unreasonable. For example, OSHA has stated that it would be unreasonable to require an employee to report in person if they are unable to do so or through a method that would require an “excessive number” of steps to report.
  2. Anti-Retaliation Provisions (Section 1904.35(b)(1)(iv))
    Above and beyond the OSHA whistleblower provision under Section 11(c) of the OSH Act, the Anti-Retaliation Regulations now prohibit employers from retaliating against employees who report work-related injuries or illnesses, and allow OSHA inspectors to cite an employer for a violation and impose penalties even when the employee at issue does not allege discrimination or adverse action by the employer.

    In the October 2016 Guidance OSHA has reiterated that to establish that an employer has violated the Anti-Retaliation Regulations, OSHA must ultimately prove the employer took the adverse action because the employee reported a work-related injury or illness and not because of a legitimate business reason. OSHA has explained that it will consider several factors to determine whether the employer used a rule as a pretext for disciplining an employee for reporting a work-related injury or illness, such as whether the employee had a reasonable basis for deviation and whether the discipline imposed was proportionate to the employer’s interest in the rule. OSHA states that it can use circumstantial evidence to satisfy its burden because it anticipates that direct evidence may not actually exist. OSHA has expressed concern regarding two types of policies in particular: drug and alcohol testing policies, and safety incentive programs.
    1. Drug and Alcohol Testing
      OSHA has clarified that while the rules do not prohibit employers from drug testing employees who report work-related injuries or illnesses, the employer must have an objective basis for testing. Drug testing may not be used as a form of discipline against an employee who report an injury or illness. OSHA has opined that the central inquiry is whether the employer had a reasonable basis for believing the drug use by the reporting employee could have contributed to the injury or illness, using the testing as a tool to determine the root causes of workplace injuries and illness. OSHA has stated that an unreasonable basis for drug testing would be where testing is required for an employee who is injured through no fault of his or her own (e.g., struck by another employee driving a forklift, or reaction to a bee sting).

      Importantly, the October 2016 Guidance clarifies that drug testing conducted in compliance with state and federal law, including state worker compensation law, does not violate the May 2016 Regulations. Further, OSHA has also stated that “OSHA will only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available. Therefore, at this time, OSHA will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.”
    2. Safety Incentive Programs
      OSHA has long-considered employer safety incentive programs as a potential mechanism for employers to incentivize employees to not report injuries and illnesses. Consistent with this concern, OSHA’s May 2016 Regulations establish a mechanism for punishing employers who implement incentive programs that result in taking adverse action against employees “simply because they report work-related injuries or illness.” OSHA has reiterated that its regulations do not prohibit safety incentive programs as a whole, and an employer’s conditioning a benefit on compliance with legitimate safety rules does not violate the regulations.

      OSHA has stated a compliant incentive program might involve an event in which the employer raffles off gift cards each month during which the employees complied with safety rules. On the other hand, OSHA has clarified that canceling a raffle because an employee reported a lost-time injury without regard to the attendant circumstances would likely violate the regulations. OSHA has reiterated its position that it encourages employees to “find creative ways” to incentivize employer to engage in safe work practices. The concern, however, is to ensure that when an employee reports work-related injuries or illness, that employee is not disproportionately penalized.
  3. Conclusion
    OSHA’s October 2016 Guidance provides several examples of how it says it intends to interpret and apply the Reporting and Anti-Retaliation Regulations. But OSHA’s guidance is both incomplete and, because it is not a regulation itself, unenforceable, leaving employers exposed to risks of discretionary enforcement by inspectors and potential misapplication of otherwise vague and ambiguous regulations. Employers should consult with legal counsel to evaluate whether their policies comply with the May 2016 Regulations and consider how OSHA might interpret those policies using the October 2016 Guidance.