OSHA has enacted a new rule, which on its face doesn’t appear to be a significant change, however could prove to be a substantial challenge to employers.
OSHA’s 29 CFR 1904.36 rule does not look like a significant change since such conduct was already prohibited by Section 11(c) of the OSHA Act. However, OSHA has hidden the real message here. As an important initial procedural matter, the regulatory notice for the final reporting rule states that the retaliation paragraph was added to the rule to provide OSHA with “an enhanced enforcement tool for ensuring the accuracy of employer injury and illness logs.” Previously, Section 11(c)’s retaliation prohibition could only be enforced if the aggrieved employee filed a complaint. Under the new rule, OSHA can issue citations to employers for allegedly discouraging employee reporting. 81 FR 29669. OSHA has noted that potential abatement procedures for a violation of this rule could include “mak[ing] whole any employees treated adversely as a result of the retaliation,” such as by reinstating a terminated employee with back pay. 81 FR 29671.
OSHA has also made it clear that it plans to challenge any action or procedure that could dissuade a reasonable employee from reporting a work-related accident or injury (81 FR 29672), and OSHA’s view of what might dissuade reporting is unbelievably broad.
OSHA has often suggested that bonus plans based on a reduction in safety incidents discourage employees from reporting an incident. Under the new rule, this would now be considered a violation, and OSHA believes it now has the authority to require the employer to revise the bonus plan and pay the bonus to employees. 81 FR 29673.
OSHA’s notice of the final rule even cautioned that in some cases employee drug testing “may inappropriately deter reporting,” and hence would be prohibited, such as when an injury or illness “is very unlikely to have been caused by employee drug use.” 81 FR 29673. Under the new rule, OSHA states that “drug testing policies should limit post-incident testing to 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.” 81 FR 29673.
OSHA has also questioned rules requiring an employee to report an incident within a certain period of time or face disciplinary action, claiming that this too discourages employee reporting. 81 FR 29670.
Although OSHA has acknowledged that the new rule does not prohibit employers from disciplining employees who violate legitimate safety rules (81 FR 29672), OSHA’s broad and vague statements about what might or might not be a legitimate safety rule and what might discourage reporting will undoubtedly lead to claims of improper disciplinary action.
Employers will now want to carefully review their employment policies and procedures, including, but not limited to, safety incentive programs, drug testing programs and disciplinary action programs to determine if they might be viewed by OSHA as discouraging employee reporting. In general, to minimize targeting by OSHA, safety incentive programs should be based on “leading” safety indicators (attendance at training programs, participation on safety committees, making safety suggestions, etc.) rather than “trailing” indicators (reported incidents, etc.) These new anti-discrimination/retaliation requirements go into effect on August 10, 2016.
Employers must establish reporting policies and notify employees
In addition to the prohibition on discrimination, the new rule also requires employers to establish “reasonable” procedures for employees to report work-related injuries and illnesses and inform employees of how they can report work-related injuries and illnesses. §1904.35(a), (b). The new rule states that a procedure is not reasonable “if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” In addition, employers must inform employees of their procedure for reporting work-related injuries or illnesses, and they must inform employees that they have the right to report injuries, and that they will not be discriminated against for reporting. The rule also adds that employers must not, of course, discriminate against employees who report work-related injuries or illnesses.
These requirements also go into effect on August 10, 2016. While this is Fed-OSHA, it applies to California Employers, as Cal-OSHA must meet or exceed Fed-OSHA regulations.
Contact Employer’s Guardian at EGConsult@employersguardian.com for more information about ways to profitably maintain compliance.