OSHA Issues Anti-Retaliation Enforcement Procedures

Interim guidelines instruct OSHA area offices on processing retaliation complaints under new electronic record-keeping rule

OSHA Issues Anti-Retaliation Enforcement Procedures

Occupational Safety and Health Administration (OSHA) enforcement efforts recently took effect for anti-retaliation rules that say employers can't discourage workers from reporting injuries or illnesses.

Under these provisions, employers are required to inform workers of their right to report work-related injuries and illnesses, and businesses can't retaliate against employees for doing so.

OSHA has issued interim guidelines to its regional administrators establishing procedures to enforce the new provisions.

The guidelines give instructions to OSHA area offices on how to process complaints of retaliation under the new rules, explained Patrick Miller, an attorney with Sherman & Howard in Denver.

"Although this guidance does not state anything particularly new, employers should be aware that the new anti-retaliation rules are now subject to enforcement and that policies and procedures should be examined for compliance," Miller told SHRM Online.

The anti-retaliation provisions went into effect on Aug. 10, 2016, but enforcement was delayed until Dec. 1, 2016.

[SHRM members-only how-to guide: How to Determine Regulatory Requirements for Safety]

One reason for the delay was a court challenge brought by business groups that claimed OSHA exceeded its authority when it created the provisions.

The court refused to grant a preliminary injunction that would have temporarily prevented the rules from taking effect until there is a final ruling in the lawsuit.

Although the court could ultimately deem the provisions unenforceable, OSHA has the green light to move forward with its enforcement efforts—at least for now.

Controversial Provisions

The regulation itself is pretty innocuous, said Howard Mavity, an attorney with Fisher Phillips in Atlanta. It prohibits employers from maintaining procedures that discourage workers from reporting injuries and illnesses. However, the lengthy preamble to the rule has caused some controversy.

There are three main points for employers to note regarding:

  • Reasonable procedures for reporting injuries and illnesses.
  • Limits on safety incentive programs.
  • Limits on drug-testing policies.

Mavity said the first two provisions aren't overly burdensome. OSHA distinguishes between policies that require "prompt" reporting and "immediate" reporting.

The agency said "it would not be reasonable to discipline employees for failing to report before they realize they have a work-related injury they are required to report or for failing to report 'immediately' when they are incapacitated because of the injury or illness."

Miller said OSHA's guidance states that when evaluating whether a procedure for reporting injuries is reasonable, the agency will look to the "when and how" of that procedure. 

"In other words, it will examine whether there are unreasonable time limits for reporting," he said, such as requirements that are too rigid and cannot reasonably be met.

OSHA will also evaluate whether the employer has unreasonable methods for reporting—like requiring the employee to report an injury in person at an inconvenient location, Miller added.

Safety incentive programs "must be structured in such a way as to encourage safety in the workplace without discouraging the reporting of injuries and illnesses," OSHA said.

Mavity noted that safety incentive programs that pay a bonus because workers didn't get hurt generally have no demonstrable effect on safety. "A lot of safety professionals have already moved away from that and instead have programs that promote good safety practices."

Much of the controversy has been around the drug testing rule.

OSHA said "blanket post-injury drug-testing policies deter proper reporting" and instructed employers to limit post-incident drug testing to incidents for which "employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use."

This may be thought of as a "reasonable-suspicion-like" standard, Mavity noted. Such a standard can create challenges for employers.

As an example, he said, marijuana has been shown to impair judgment and reflexes without affecting gait or speech, so this rule puts a lot of pressure on front-line supervisors to detect impairment when they are already heavily burdened.

Moreover, there has been an increase in unlawful drug use for the first time in years—particularly opiate abuse—and yet OSHA is telling businesses to back off on drug tests, he added.

"It will be interesting to see how aggressively OSHA enforces these new rules," Miller said. "That enforcement will depend in large part on how many retaliation complaints it receives."

He added that employers should make sure their procedures for reporting injuries and illnesses do not place unreasonable burdens on employees.

Electronic Record-Keeping

The provisions are part of a broader electronic record-keeping rule that will require covered employers to submit injury and illness data electronically to OSHA that they already must record on  forms they keep onsite. Some of the collected information will be available to the public on the agency's website.

OSHA has said that "making injury information publicly available will 'nudge' employers to focus on safety."

[SHRM members-only how-to guide: How to Complete the OSHA Form 300]

The electronic record-keeping rule went into effect on Jan. 1, but the reporting requirements will be phased in over a two-year period as follows:

  • Businesses covered by the record-keeping regulation that have 250 or more employees must submit information from their 2016 Form 300A by July 1, 2017.
  • Those businesses will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018.
  • Businesses in certain high-risk industries (such as agriculture, construction and manufacturing) with 20-249 employees must submit information from their 2016 Form 300A by July 1, 2017, and from their 2017 Form 300A by July 1, 2018. 
  • Starting in 2019, the information must be submitted by March 2.

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