OSHA’s new electronic injury recordkeeping rule includes anti-retaliation provisions that create new employer obligations and prohibitions related to internal employee injury reporting procedures, and expands OSHA’s enforcement authority by introducing a vague new set of anti-retaliation provisions. Particularly controversial isthe impact of OSHA’s new rule on employers’ policies for post-injury drug testing, safety incentive programs, and executive compensation and bonuses. Until very recently, employers have seen little guidance about what OSHA means by reasonable reporting procedures or what types of policies may violate the new anti-retaliation provisions.
On October 19, 2016, OSHA issued a Guidance Memorandum offering its interpretation of the vague, controversial anti-retaliation provisions of OSHA’s new electronic injury and illness recordkeeping rule. The timing of OSHA’s issuance of the October Guidance is particularly noteworthy, given developments in the legal challenge filed by Industry plaintiffs in a federal district court in Texas (TEXO ABC/AGC, Inc., et al. v. Perez, Civil Action No. 3:16-cv-01998-D).
The Guidance was not unexpected. Amidst growing frustration from Industry about the rule and its lack of clarity, OSHA promised last summer when it decided to first postpone the enforcement date from August 1, 2016 to November 1, 2016, to publish guidance explaining the new provisions. Just one week before issuing the Guidance Memo, OSHA deferred the enforcement effective date of the anti-retaliation provisions, for the second time, from November 1st to December 1st. This second delay of the anti-retaliation rule was done at the specific request of the Texas judge overseeing the case, who until yesterday, was considering industry’s request for a Preliminary Injunction. Judge Sam A. Lindsay rejected the groups’ initial efforts to block the rule prior to December 1, clearing the way for immediate compliance.
So now what?
Employers would be well served to understand OSHA’s new Guidance Memorandum, and be prepared to comply with the new anti-retaliation provisions in the event they survive the current litigation (the lawsuit against the rule will continue, even though the employer groups lost round one of the fight and failed to block the rule from going into effect on December 1) and somehow remain below the radar of the new Trump Administration.
The Guidance still leaves a lot of questions unanswered about the new rule, but it does provide at least some idea of OSHA’s expectations about its new rule. The new Guidance addresses, to some degree, what OSHA intends by “reasonable” reporting procedures, and specifically, what type of employee discipline, post-incident drug testing, and safety incentive programs would be considered retaliatory, and therefore violative of the new rule.
You should consider your corporate culture and your specific needs in determining whether and how to change your policies relating to: automatic post-accident drug testing; rules requiring “immediate” reporting of workplace injuries and illnesses; and incentive programs based upon worker injury data.
Automatic Post-Injury Drug Testing
OSHA wants employers to make some sort of initial determination that unlawful drug use may have contributed to the accident before requiring a drug test. However, OSHA’s guidance also states that the rule will not prohibit automatic post-injury testing where that testing is expressly required by state workers compensation laws.
Safety Incentive Programs
OSHA’s ire has been directed at those incentive programs that reward the absence of injury or withhold rewards from an individual or group for someone having reported a recordable injury, or for not achieving a certain injury rate. The litmus test for employers here is whether the reward or benefit to the employee (a pizza party, a gift card, a monetary bonus.) is based on leading indicators (such as complying with a safety rule, completing training, etc.) v. lagging factors (injury rates).
Workplace Injury Reporting Procedures
There are two parts to the workplace injury reporting procedures. Hold on to your hats here folks.
a. The guidance memo stated that these procedures must not deter reporting and must not be retaliatory in nature. The easiest way to ensure compliance is to develop an effective procedure for reporting workplace injuries and illnesses. Ensure that the official OSHA poster is present and posted in a conspicuous location at your workplace and ensure that your rules do not use the word “immediately” when describing an employee’s obligation to report a workplace injury.
b. The Guidance Memo also clarifies that employee discipline for violating workplace safety rules is not prohibited, and further provides insight how OSHA will determine whether disciplinary policies or actions violate the new rule. Specifically, to establish a violation of 1904.35(b)(1)(iv) in a case where an employer disciplines an employee who reports a work-related injury because the employee violated a workplace safety rule, OSHA will need to prove that the actual reason for the disciplinary action was that the employee reported an injury or illness, rather than the violation of the safety rule. The central inquiry, according to OSHA’s new Guidance, is whether the employer enforces the same safety rule consistently; i.e. disciplines employees who violate the rule even where there is no related injury.
The solution to avoid such problems to better train your supervisors to discipline employees for unsafe behavior before an injury occurs, and not just wait until after an incident is reported to begin the process of handing down discipline.