By J. Kent Pearson, Jr.
Employer and Employee Reporting
On May 12, 2016, the Occupational Safety and Health Administration (“OSHA”) published its final rule entitled Improve Tracking of Workplace Injuries and Illnesses (to read the rule, visit 81 Fed. Reg. 29623
). The rule requires employers in certain industries to submit OSHA injury and illness data electronically. The content and the frequency of the submissions depend on the size of the employer and the particular industry. In the preamble to the rule, OSHA indicates that it will post the injury and illness data it collects on its public website, and may use such data to identify employers for investigatory purposes.
The rule also requires employers to inform employees of their right to report work-related injuries and illnesses and reinforces the existing requirement that employer procedures for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from making such reports. Finally, the rule incorporates the pre-existing statutory prohibition on employer retaliation against employees for reporting work-related injuries or illnesses.
Preamble to Rule Addresses Potential “Chilling Effect” on Employee Reporting of Workplace Illnesses and Injuries
Although not specifically addressed in the rule, the preamble to the regulation addresses concerns raised by employee groups about certain employer policies and practices that the groups consider to have a chilling effect on employee reports of illnesses or injuries. For example, OSHA notes that employer disciplinary policies requiring “immediate” reporting of illnesses or injuries may be viewed as retaliatory. Similarly, the preamble notes that certain safety incentive bonuses may have a chilling effect on the reporting of workplace illnesses and injuries. Finally, the preamble discusses the impact of “blanket” post-accident drug and alcohol testing policies that mandate such testing after any injury report, regardless of the nature and circumstances of the injury or illness.
As articulated in the preamble, OSHA’s view is that post-accident drug and alcohol testing may be considered discriminatory if an injury or illness is “very unlikely” to have been caused by employee drug use, or the method of testing does not identify current impairment, as opposed to drug use in the recent past. For example, it would not be appropriate to test an employee who reports a repetitive stress injury. On the other hand, if post-accident testing is required by law (for example, under U.S. Department of Transportation rules), or the circumstances of the injury give rise to the possibility that drug or alcohol impairment may have contributed to the injury, OSHA indicates that it will not consider drug testing to be an adverse action against the employee.
OSHA’s comments in the preamble to the 2016 rule do not have the force of law, and a court may not agree. Nonetheless, the comments do provide insight into OSHA’s approach to such issues. Consequently, employers should promptly evaluate their existing policies and practices to ensure that they do not have an unintended chilling effect on employee reports of on-the-job injuries or illnesses. In particular, employers should evaluate any safety incentive bonuses and policies relating to reporting on-the-job injuries/illnesses, workplace safety, “blanket” post-accident drug and alcohol testing, and any other policy that could deter a reasonable employee from reporting a work-related illness or injury.
The final rule’s reporting obligations are scheduled to go into effect January 1, 2017. Originally, the anti-retaliation provisions were to become effective August 10, 2016. However, certain employer industry groups have filed suit in the U.S. District Court for the Northern District of Texas challenging the regulations. As a consequence, OSHA has twice delayed the effective date of the anti-retaliation provisions. Barring action by the court or further delays by OSHA, the anti-retaliation provisions will become effective December 1, 2016.
Please contact us if you have any questions about implementation of the OSHA final rule.