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OSHA’s Anti-Retaliation Recordkeeping Rule, Part 2

WEDNESDAY, OCTOBER 19, 2016

By Eric J. Conn


Assault on Pizza Parties, Drug Tests and Executive Compensation

Part 2: New Obligations, Enforcement Mechanism

This is Part 2 of a multi-part series on the topic. To read Part 1: Overview and History, click here.

New Employer Obligations

The new “workers’ rights” anti-retaliation provisions of the updated Recording and Reporting Occupational Injuries and Illnesses regulation add language to 29 C.F.R. §§ 1904.35 (employee involvement) and 1904.36 (prohibition against discrimination for reporting an injury)

legal justice
© iStock.com / JacobStudio

The new rule increases employers’ obligations to implement “reasonable reporting” procedures for employees, and expands OSHA’s enforcement authority by introducing a vague new set of anti-retaliation provisions, which have been challenged in court by industry groups.

As opposed to the remaining parts of the rule on electronic records submission, which will be implemented in different stages over the next three years, the anti-retaliation provisions will take effect Nov. 1*, unless the federal district court hearing the challenge to these provisions grants a preliminary injunction or throws out the rule altogether.

[*The Occupational Health and Safety Administration issued a statement Oct. 19 indicating that it has agreed to further delay enforcement of the anti-retaliation provisions in its injury and illness tracking rule until Dec. 1. The U.S. District Court for the Northern District of Texas requested the delay to allow additional time to consider a motion challenging the new provisions.]

Specifically, the rule makes three changes to §§ 1904.35 and 1904.36. It:

  • Requires employers to “inform” employees of their right to report work-related injuries and illnesses free from retaliation;
  • Clarifies the existing implicit requirement that employers’ procedures for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting; and
  • Reiterates the existing prohibition to employers from retaliating against employees for reporting work-related injuries or illnesses.

OSHA believes these changes strengthen the recordkeeping rule by expanding the existing requirement that employers inform employees how to report work-related injuries and illnesses. OSHA employers must specifically inform employees not only how to report, but that they have a right to report work-related injuries and illnesses free from retaliation.

The duty to inform is not a duty to train. Accordingly, in-person verbal communications are not necessary. 

OSHA Poster
OSHA

By posting the the newest (April 2015) version of the “OSHA: It’s the Law” Worker Rights Poster,” employers will be in compliance with the new duty to inform employees of their injury reporting rights.

The simplest way for employers to comply with the new duty to inform employees of these injury reporting rights is by posting the newest (April 2015) version of the “OSHA: It’s the Law” Worker Rights Poster.” The new poster adds a few words to older versions that express the right to report free from retaliation.

While employers are not required to replace older versions of the poster, posting the April 2015 version automatically satisfies this new duty.

The new rule also requires employers to implement reporting procedures that are reasonable and that do not deter reporting. The rule does not define reasonableness, nor did OSHA explain in the Preamble to the Final Rule what would be considered a reasonable reporting procedure.

The Preamble does, however, provide a few examples of what it does not consider reasonable, including policies that require immediate reporting of an injury, or a policy that creates an undue burden on employees to complete a report. 

As for timing to make a report, OSHA makes clear that an employer’s reporting policy must account for injuries and illnesses that build up over time, have latency periods or do not initially appear serious enough to be reportable.

In essence, OSHA is demanding reporting policies that allow employees a reasonable amount of time to report after an employee realizes he or she has suffered a work-related injury, and further, it should not require employees to spend a lot of time or otherwise jump through too many hoops filling out numerous forms or notifying numerous company representatives to make a satisfactory report. 

stopwatch
© iStock.com / slobo

OSHA wants employers’ policies to give workers a reasonable amount of time to report injury and illness, with consideration for those that build up over time, have latency periods or do not initially appear serious enough to be reportable.

Although not providing a specific acceptable reporting deadline, OSHA has pursued an 11(c) retaliation action against an employer who disciplined an employee for violating its 24-hour reporting deadline, even in a circumstance where the employee’s failure to report resulted in a minor injury turning into an amputation.

Ultimately, OSHA will likely maintain broad discretion in deciding which reporting polices are or are not reasonable under the circumstances of the workplace.

OSHA’s New Enforcement Tool (Whistleblower Actions Without Whistleblowers)

The Final Rule adds paragraph (b)(1)(iv) to 1904.35 to incorporate explicitly into the regulation the prohibition against retaliation for reporting work-related injuries or illnesses—a requirement that is already imposed on employers by Sec. 11(c) of the OSH Act.

The Preamble interprets 1904.35(b)(1)(iv) broadly to prohibit “any adverse action that could well dissuade a reasonable employee from reporting a work-related injury or illness,” which includes the above-enumerated unreasonable reporting policies.

whistleblower definition
© iStock.com / Sohel Parvez Haque

Under the new rule, an employer’s policy on its face can serve as the basis for a retaliation-based citation and civil penalty from OSHA—even without a whistleblower complaint or evidence of a single injury that was not reported.

This provision provides OSHA a new enforcement mechanism to cite employers for retaliatory conduct that was not available under Section 11(c).

Under the new framework, regardless of whether any employee actually alleges that he or she was the victim of retaliation, employers may receive a regulatory citation for implementing a reporting policy that has a perceived retaliatory effect against employees for reporting workplace injuries. 

Such policies can include:

  • Discipline for “late” injury reporting;
  • Discipline for violating a vague work rule (e.g., “work carefully” or “maintain situational awareness”);
  • Blanket post-incident drug testing; and
  • Certain types of safety incentive programs. 

OSHA can look at any such situation and decide that—even without a whistleblower complaint or evidence of a single injury that was not reported—workers are deterred from reporting workplace injuries or illnesses, or are being discriminated against.

Essentially, an employer’s policy on its face can serve as the basis for a retaliation-based citation and civil penalty from OSHA.

Editor’s Note

This is Part 2 of a multi-part series on the topic.

Part 3 will look at the agency’s attitudes toward safety incentive programs, post-accident drug testing and executive compensation, as well as how these policies can serve as the basis for a retaliation-based citation.

Part 4 will look at the industry challenge to the rule, as well as what employers should do in the meantime.

ABOUT THE BLOGGER

Eric J. Conn

Eric J. Conn is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Group. His practice focuses exclusively on issues involving occupational safety and health law. OSHA Watch offers general information but should not be construed as legal advice. Employers are always advised to seek appropriate counsel for individual issues. Contact Eric.

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Tagged categories: Epstein Becker Green; Health & Safety; Health and safety; Laws and litigation; OSHA; Compliance; Enforcement; North America; Regulations

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