By: Trenam’s Employment Law Team
The Occupational Safety and Health Administration (OSHA) issued a final rule revising its Occupational Injury and Illness Recording and Reporting Requirements. The new rule does two things: (i) it establishes employer requirements for workplace injury and illness reporting, including requiring employers to give employees notice of their rights regarding same (the “Reporting, Notice and Anti-Retaliation Provisions”); and (ii) it requires certain employers to submit injury and illness data electronically beginning in 2017 (the “Electronic Submissions Provisions”). The Reporting, Notice and Anti-Retaliation Provisions take effect on August 10, 2016, and require employers to take action prior to that time.
Reporting, Notice and Anti-Retaliation Provisions
Under the final rule, employers: (1) are required to implement reasonable reporting procedures that do not deter or discourage employees from reporting injuries and illnesses; (2) must inform employees about their right to report work-related injury and illness free from retaliation; and (3) are reminded that they must not retaliate against an employee who reports a work-related injury or illness. These provisions become effective August 10, 2016, meaning employers must have reasonable reporting procedures in place and provide notice to their employees of those procedures, as well as the employees’ right to report, as of that date. Although the Reporting, Notice and Anti-Retaliation Provisions may seem straightforward, they are not as simple as they sound and could affect many workplace policies. As discussed below, OSHA’s interpretation of the new rule creates uncertainty regarding how OSHA and courts might treat widely used policies such as prompt-reporting requirements, mandatory post-accident drug testing programs, disciplinary policies, and employee incentive programs.
Immediate Reporting Requirements Unreasonable and Impermissible
OSHA takes the position that reporting procedures are not reasonable if they require immediate reporting because “[e]mployer reporting requirements must account for injuries and illnesses that build up over time, have latency periods, or do not initially appear serious enough to be recordable.” OSHA suggests that disciplining an employee for late reporting in such circumstances could violate the agency’s revised regulation.
Mandatory Drug Testing Prohibited Except in Certain Circumstances
Although the final rule does not mention drug testing of employees, OSHA interprets the rule to prohibit employers from using mandatory drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. OSHA acknowledges that post-incident testing would not be retaliatory if an employer sees a “reasonable possibility” that drug use was a contributing factor to the injury or illness. OSHA also recognizes that 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.” However, it is unclear how OSHA would construe post-accident drug testing under voluntary workers’ compensation programs, such as Florida’s Drug Free Workplace Act.[1]
Employee Discipline and Incentive Programs May Violate Rule
Under its interpretation of the final rule, OSHA could also find that disciplining an employee who reports an injury or illness for violation of safety rules constitutes retaliation or is a deterrent to reporting. Such disciplinary action, particularly where a safety rule is vague or used disproportionately to discipline workers who report an injury or illness, would therefore be considered by OSHA to be prohibited by its final rule. Similarly, a safety incentive program may be prohibited if it discourages reporting of workplace injuries and illnesses by denying a benefit, such as disqualifying an employee for a monetary bonus, for reporting. OSHA states that it “does not intend the final rule to categorically ban all workplace incentive programs, but employers must ensure that their incentive programs are structured in such a way as to encourage safety in the workplace without discouraging the reporting of injuries and illnesses.”
OSHA Officers Can Now Issue Retaliation Citations Independently
Significantly, for the first time OSHA compliance officers themselves will be able to cite an employer: (a) if OSHA believes the employer has a program that deters or discourages reporting through the threat of retaliation and/or (b) for retaliation — even if no employee has filed an OSHA complaint. Under the earlier regulations, OSHA could not take action for retaliation unless an employee filed a complaint with OSHA within 30 days of the purported retaliation. The new rule almost certainly will result in an increased number of OSHA claims.
Electronic Submissions Provisions
With respect to the Electronic Submission Provisions, the new rule requires certain employers to submit injury and illness data electronically on an annual basis beginning in 2017. Employers with 250 or more employees must submit information electronically from their OSHA Forms 300A, 300, and 301 by certain midyear deadlines over the next two years and by March 2 annually thereafter. Businesses with 20-249 employees that operate in OSHA-designated “high hazard industries” (including department stores, nursing homes, and construction) will also be required to electronically submit information from their Form 300A annually. The earliest applicable deadline for electronic submission by any employer is July 1, 2017. The new requirements do not add to or change the recording criteria or definitions for these records, but change the way in which the information is required to be kept and reported. Employers required to submit information electronically must submit all information from the applicable form except employee name, employee address, name of the physician or other health care professional, and facility name and address if treatment was given away from the worksite. OSHA intends to post the data from employer submissions on a publicly available website. OSHA does not intend to post any information on the website that could be used to identify individual employees.
What Employers Should Do
With the Reporting, Notice and Anti-Retaliation Provisions taking effect in less than a month, employers should reevaluate their policies and procedures now, including but not limited to their anti-retaliation, injury and illness reporting, drug-testing, workplace safety, and employee conduct and discipline policies, and take steps to ensure compliance with OSHA’s new rule. You should seek the advice of counsel to assist you in this process. A member of the Employment Law Group at Trenam Law would be happy to advise you.
