by Eric J. Conn
The Occupational Safety and Health Administration’s (OSHA) new e-record-keeping rule, formally titled “Improve Tracking of Workplace Injuries and Illnesses,” has created quite a stir for employers. The rule requires employers to electronically submit their injury and illness data, which the agency will then publish online for all the world to dissect. That’s a dramatic change from the historic internal-only use of OSHA 300 logs. It turns out, however, that the electronic records requirements may not be the most controversial provisions of the new rule. 
The rule, promulgated on May 12, also includes new provisions that increase employers’ obligations to implement “reasonable reporting” procedures for employees who suffer work-related injuries. The rule expands OSHA’s enforcement authority by introducing a vague new set of antiretaliation provisions. Particularly troubling is the impact of the new rule on workplace policies addressing postinjury drug testing, safety incentive programs, and executive compensation and bonuses.
When a lawsuit challenging the agency’s action was filed in a Texas federal court shortly after the final rule was announced, OSHA agreed to delay enforcement until November 1, 2016. Yesterday, OSHA agreed to further delay enforcement of the new rules until December 1, 2016.
Despite an industry legal challenge to the “workers’ rights” portions of the new rule, the looming deadline means employers must act quickly to evaluate their existing reporting policies, drug-testing policies, safety incentive programs, and compensation schemes to ensure they are in compliance.
New employer obligations
The new “workers’ rights” antiretaliation provisions of the record-keeping rule add language to 29 C.F.R. §§ 1904.35 (Employee Involvement) and 1904.36 (Prohibition Against Discrimination for Reporting an Injury). Specifically, the rule now:
- 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 on employers retaliating against employees for reporting work-related injuries or illnesses.
Note that the requirement to inform employees of their rights doesn’t mandate training on the topic or even oral communication. Probably the simplest way to comply with your duty to inform employees of their injury-reporting rights is by posting the newest version of the “OSHA: It’s the Law” workers’ rights poster in your workplace. The new poster, which was released in April 2015, adds a few words to older versions of the poster that explain the right to report free from retaliation. While you aren’t required to replace older versions of the poster, displaying the 2015 version automatically satisfies the new duty.
Regarding the requirement to implement reporting procedures that are reasonable and don’t deter reporting, the preamble to OSHA’s new rule provides a few examples of what isn’t reasonable, including policies that require immediate reporting of an injury or policies that create an undue burden on employees to complete a report. OSHA makes it clear that an employer’s reporting policy must account for injuries and illnesses that build up over time, have latency periods, or don’t initially appear serious enough to be reportable.
No specific reporting deadline is provided by OSHA; however, it’s noteworthy that the agency recently pursued a retaliation action under Section 11(c) of the Occupational Safety and Health Act (OSH Act) against an employer that disciplined an employee for violating its 24-hour reporting deadline, even though the employee’s failure to report the incident resulted in a minor injury turning into an amputation. Ultimately, OSHA will have broad discretion to determine which reporting policies are (or are not) reasonable under the circumstances of the workplace.
New enforcement tool: whistleblower claims without whistleblowers
The final rule also adds Paragraph (b)(1)(iv) to Section 1904.35, providing a new enforcement mechanism to cite employers for retaliatory conduct that wasn’t available under OSH Act Section 11(c). Under the new framework, regardless of whether an employee actually alleges that he was the victim of retaliation, employers may receive a regulatory citation for implementing a reporting policy that has a perceived retaliatory effect.
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 postincident drug testing, and certain types of safety incentive programs. OSHA can look at any of those situations and decide that—even without a whistleblower complaint or evidence of a single injury that wasn’t reported—workers are being deterred from reporting workplace injuries or illnesses, or being discriminated against.
Safety incentive programs
OSHA has expressed particular concern about the purported chilling effect and retaliatory nature of the employee incentive programs used by many employers across a large swath of industries. While recognizing that incentive programs can be helpful in driving a positive safety culture, OSHA explains that “if the programs are not structured carefully, they have the potential to discourage reporting of work-related injuries and illnesses without improving workplace safety.” Based on OSHA’s statements, it’s pretty clear that incentive programs will be found to be unreasonable if they:
- Exclude workers who report injuries from prizes or awards;
- Provide rewards or parties for workers or crews that remain injury-free; or
- Deny certain benefits or bonuses to employees based on reported injuries or tied to the recordable injury rate.
By contrast, incentive programs that make rewards contingent on employees following legitimate safety rules, rather than a low metric of reported injuries or illnesses, are permissible. Similarly, programs that promote worker participation in safety-related activities, such as identifying hazards or safety training or participating on a safety committee or an incident investigation team, are permissible.
Postaccident drug testing
Without explicitly referencing drug-testing programs in the regulatory text, the preamble to the rule makes clear that postaccident drug-testing programs, while not categorically prohibited, are highly suspect and will come under severe scrutiny. Blanket postincident drug testing is essentially prohibited unless it’s required by some other law or the employer’s workers’ compensation insurer. OSHA seems to at least insulate a narrow band of drug-testing programs, however.
First, the agency appears to sanction drug testing that complies with the requirements of a state or federal law (e.g., the U.S. Department of Transportation’s mandatory postaccident testing). Likewise, OSHA acknowledges that employers must drug test employees after every accident, regardless of the circumstances, if testing is required by their workers’ comp insurers. That “required by the insurer” stipulation includes situations in which the insurer offers a premium or rate reduction for employers that have drugand alcohol-testing programs in place. Finally, the new rule has no impact on preemployment or random drug testing.
To be clear, not all postincident drug testing will be prohibited by the rule. Postaccident drug testing is still permitted in situations in which employee drug use is likely to have contributed to the incident and when the drug test can accurately identify impairment caused by drug use.
For example, a postaccident drug test for a forklift operator injured in a crash would be permissible, especially if there’s evidence that he operated the forklift recklessly. Conversely, OSHA will likely find postinjury drug testing unreasonable for an employee who reports an allergic reaction to a bee sting after working outside or for an employee who suffers a musculoskeletal disorder due to repetitive strain.
What should employers do now?
Even though the rule is under legal challenge, it will not be stayed (delayed) pending a court decision. Accordingly, here are some actions employers should consider taking in the near term:
- Provide refresher training on record-keeping requirements to the individuals responsible for maintaining your injury and illness record-keeping program, including fielding injury reports from employees and completing 300 logs, 301 incident reports, and 300A annual surveys;
- Engage counsel to conduct attorney-client privileged audits of your injury and illness record-keeping forms and injury reporting policies;
- Post the latest version of the OSHA workers’ rights poster or otherwise inform employees about their right to report injuries without retaliation as well as how to report injuries;
- Work with counsel to evaluate and update (1) your injury reporting policies to ensure they aren’t so burdensome that they may discourage reporting (e.g., providing for drug testing only when there are injuries or allowing very short windows of time to report injuries) and (2) your safety incentive and management compensation programs to ensure they don’t chill employees’ right to report injuries; and
- For heaven’s sake, hide the empty pizza boxes if OSHA shows up at your workplace!
Get real strategies for ensuring compliance with OSHA’s final electronic record-keeping rule by participating in the November 9 webinar “OSHA Electronic Recordkeeping and Anti-Retaliation Final Rule: Practical Tips for Ensuring Compliance before December 1, 2016 Effective Date.” To register or for more information, visit http://store.blr.com/osha-recordkeeping-110916.
Eric J. Conn is a founding partner and chair of the national OSHA practice group at Conn Maciel Carey PLLC. He may be contacted at econn@connmaciel.com.