By Alan E. Seneczko
On May 12, 2016, OSHA issued a Final Rule modifying its
recordkeeping regulation, requiring employers in certain industries to
electronically report illness and injury data that they are required to record
in their OSHA logs. No big deal, right? Unfortunately, the big deal was buried
deeper in the Rule, in comments relating to modifications to the regulation
governing Employee Involvement (§1904.35).
Under the existing regulation, employers are required to establish
a way for employees to promptly report work-related injuries and tell them how
to do so. The amended regulation, which was scheduled to take effect on August
10, significantly expands this obligation in two ways. First, it requires employers
to establish a “reasonable procedure” for employees to report injuries promptly
and accurately, and goes on to state that “a procedure is not reasonable if it
would deter or discourage a reasonable employee from accurately reporting a
workplace injury.”
According to the interpretive comments that accompany this
amendment, this means employers are
prohibited from disciplining employees for delay in reporting a work injury
in circumstances where the employee may not immediately realize that he has
suffered an injury, such as in cases involving cumulative trauma. In those
instances, in order for its reporting procedures to be considered “reasonable,”
an employer must allow the employee to report an injury within a reasonable
timeframe after realizing that he has suffered it.
Second, and even more significantly, the revised regulation
contains new anti-retaliation provisions. It requires employers to inform
employees of their right to report injuries free from retaliation, and
prohibits them from discharging or discriminating against employees for doing
so. It thus incorporates the existing statutory prohibition against retaliation
found in Section 11(c) into the recordkeeping regulation, making retaliation an
independent basis for a citation, which can then be “abated” through
reinstatement and back pay – and effectively eliminates the 30-day statute of
limitations that would otherwise govern such a claim.
Even more distressing is that, according to OSHA, this
prohibition limits post-accident drug
testing to only those situations “in 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 last requirement is particularly
interesting, and completely disingenuous, given that a drug test generally only
reveals drug use, not impairment. OSHA contends that this regulation prohibits
employers from testing employees who report repetitive motion injuries, back
strains, bee stings, injuries caused by improper guarding, etc., since the
requirement might “deter” employees from reporting their injuries, without
contributing to an understanding of why the injury occurred or otherwise improving
workplace safety. As a result, post-accident testing must be very narrowly
drafted. [Note: This does bring to mind a client situation
several years ago, when an employee reported to his supervisor with a bloody,
lacerated hand, claiming he did it at home hours earlier – presumably to avoid having
to submit to a post-accident drug test.]
OSHA also uses this new regulation to attack safety incentive programs, such as drawings for employees
who are injury-free, or bonuses to groups of employees who have not reported an
injury over a specified period of time. According to OSHA: “[I]t is a violation for an employer to use
an incentive program to take adverse action, including denying a benefit,
because an employee reports a work-related injury or illness, such as
disqualifying the employee for a monetary bonus or any other action that would
discourage or deter a reasonable employee from reporting the work-related
injury or illness. In contrast, if an incentive program makes a reward
contingent upon, for example, whether employees correctly follow legitimate
safety rules rather than whether they reported any injuries or illnesses, the
program would not violate this provision.”
Although these
provisions of the Final Rule were scheduled to take effect on August 10, 2016,
OSHA has pushed back the effective date to November 1, 2016, ostensibly to
conduct “additional outreach” to employers, and to develop educational
materials and enforcement guidance on the issue. In the meantime, a number of
trade associations have joined together to file a lawsuit seeking to enjoin the
new anti-retaliation provisions as they relate to post-accident drug testing
programs. See, Texo ABC/AGC Inc. v. Perez,
Case No. 3:16-cv-01998 (N.D. Tex.).
Stay tuned. If you would like more information, or have
questions about the new regulation and/or how it may affect your post-accident drug
testing or safety incentive programs, contact Attorney Alan E. Seneczko at
(262) 560-9696, or alseneczko@wesselssherman.com.
