By Rod Smith and Pat Miller

On May 11, 2016, OSHA amended its Injury and Illness Recordkeeping Rule. While much attention has been paid to the new requirements that employers electronically submit their injury and illness records to OSHA starting in 2017, equally important anti-retaliation provisions go into effect August 10, 2016. State OSHA plans are expected to adopt similar requirements by November 2016.

Understanding these anti-retaliation requirements is not only critical to health and safety professionals, but also human resource personnel who – in many cases – will be responding to a new wave of discrimination complaints, investigations, and enforcement actions. This Update will summarize changes to the law and provide our recommendations for what employers should consider doing before the August 10 deadline.

The Current Law

The OSHA Act has always contained an anti-discrimination provision. Section 11(c) of the Act prohibits discrimination against any employee who engages in “protected activities,” such as filing a safety complaint, reporting an injury or illness, requesting an OSHA inspection, or testifying against the employer, to name a few. However, enforcement procedures for Section 11(c) complaints are somewhat restrictive, especially when compared to other employment laws. Aggrieved employees must file a complaint within 30 days, then a special whistleblower unit of OSHA must investigate and make a determination within 90 days. If OSHA determines that Section 11(c) was violated, the only legal recourse is a lawsuit by the Department of Labor in the United States District Courts. Unlike other employment laws, the employee has no right to file his or her own lawsuit. As a result of these restrictions, there are few enforcement actions.

Until now, OSHA regulations said very little about discrimination against employees for reporting injuries or engaging in other protected activities. The current regulation simply requires that employees be told how to report a work-related injury or illness through an established procedure, and how they can access injury and illness records. Another section reminds employers that Section 11(c) prohibits discrimination for engaging in a number of protected activities.

The New Rule

The amendments to the recordkeeping regulation create a whole new scheme for enforcing discrimination complaints, in addition to those already provided by Section 11(c). The new rule:

• Provides new notice requirements to employees.
• Expands the existing OSHA inspection and citation process to investigate and cite retaliation violations.
• Provides guidance on safety incentive programs that may discourage employees from reporting work-related injuries or illnesses.
• Provides guidance on post-incident drug testing that may discourage employees from reporting a work-related injury or illness.

New Notice Requirements

Amended 29 C.F.R. §1904.35 states that employees must be involved in the employer’s recordkeeping system, with employers providing the following notices and information to its employees:

• Employers must inform each employee of how he or she is to report a work-related injury or illness.
• Employers must establish reasonable procedures for employees to report work-related injuries and illnesses promptly and accurately. “A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”
• Employers must inform each employee that he or she has a right to report work-related injuries and illnesses.
• Employers must inform each employee that the Company is prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses.
• Employers must provide employees and their representatives access to injury and illness records.

To comply with these new notice requirements, we recommend the following:

1. Post OSHA’s current “It’s the Law” poster in each of your facilities. In a summary of the rule, OSHA says the poster satisfies notice to employees of their right to report work-related injuries and illnesses free from retaliation.
2. Revise your employee handbook and/or safety policy to explicitly state:
   • Employees have the right to report work-related injuries and illnesses.
   • [Your Company] is prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries and illnesses.
3. Make certain your employee handbook and/or safety policy contains a simple procedure to report work-related injuries and illnesses. If necessary, revise your procedure for employees to report work-related injuries and illnesses in a simple, straight-forward manner. Avoid complicated forms or steps to make a report. A sample provision reads:
   • [Your Company] expects all work-related injuries, illnesses, accidents, or “near miss accidents” to be reported to ____________ or __________________ as soon as possible after you learn of the incident and no later than ___. Reports may be verbal.
4. Make sure your employee handbook and/or safety policy advises employees and their representatives on how to access injury records. A sample provision reads:
   • All employees and their representatives are advised of their right to access relevant exposure and medical records which the Company is required to maintain under OSHA’s Access to Exposure and Medical Records and Recordkeeping standards, or similar state requirements. This includes injury and illness records (i.e., OSHA 300 Logs). See _____________ for more information.

New OSHA Inspection and Enforcement Measures

Starting August 10, 2016, OSHA’s safety and health inspectors can investigate whether employers are complying with the new rules, including the new requirement that employers “. . . not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.” Only time will tell, but we believe the process will look very similar to existing OSHA inspection procedures:

• An OSHA inspector shows up unannounced in response to an employee or union complaint of discrimination, or simply decides to investigate employee discrimination as part of a safety and health inspection.
• The inspector conducts a discrimination investigation through interviews, document requests, and consultation with the union. The investigation could include review of any safety incentive programs or post-incident drug testing programs, discussed below.
• If OSHA determines that your company discriminated against one or more employees for reporting work-related injuries and illnesses, or violated any of the new notice requirements, it will issue a citation − Serious, Repeat or Willful − with proposed penalties and required abatement. Penalties are expected to significantly go up August 1, 2016.  OSHA has made it clear that appropriate abatement in a discrimination case could include back pay, reinstatement of the employee(s), and/or a demand that the employer change its policies.
• As with any citation, your company will have the right to request an informal settlement conference with the local OSHA office and/or file a Notice of Contest within 15 working days after receipt of the citation. Citations not settled or contested by the 15-day working day deadline became “final” and are not subject to further review.
• Contested discrimination citations will be handled by OSHA’s attorneys in the U.S. Department of Labor and adjudicated by administrative law judges of the federal Occupational Safety and Health Review Commission.

Applying existing OSHA investigation and enforcement procedures to employee discrimination claims is one of the most troubling aspects of the new rule. First, the new procedures duplicate an existing statutory procedure for resolving discrimination complaints under Section 11(c) of the OSHA Act. Employers are now subject to multiple inspections and enforcement.

Second, while most OSHA safety and health inspectors have the training and experience to identify safety and health hazards, whether they have the skills to conduct a fair and efficient retaliation investigation may be another matter. Likewise, administrative law judges of the Occupational Safety and Health Review Commission, who up until now have only dealt with safety and health issues, will be asked to decide what are essentially employment law matters.

Lastly, the new rules are vague and leave much to future interpretation. For example, what is a “reasonable procedure” for employees to report work-related injuries and illnesses? How does an injury and illness reporting system “deter or discourage a reasonable employee” from making reports? OSHA offers little guidance.

To deal with these new procedures, we recommend:

1. Determine who in your company will handle OSHA discrimination investigations. Safety and health personnel typically handle OSHA safety inspections, but in many companies human resources personnel respond to employment-related claims such as those filed with the EEOC or the Wage and Hour Division. In our view, an OSHA discrimination claim is much like any other employment discrimination claim, with the same types of defenses, evidence, and strategy. Consider allowing your human resource professionals to handle or assist in any OSHA discrimination complaints and investigations.
2. Discipline or discharge of employees who have previously reported work-related injuries and illnesses should be handled with extra care.
3. Add OSHA’s new prohibitions on discriminating against reporting work-related injuries and illnesses – as well as your policy modifications − to existing management and employee training.

Safety Incentive Programs

In March 2012, OSHA issued a controversial internal enforcement memorandum stating that some safety incentive programs might discourage employees from reporting work-related injuries and illnesses and, therefore, violate the anti-discrimination provisions of Section 11(c) of the Act or the employer’s duty to record all work-related injuries under the existing recordkeeping rule. Examples given include paying bonuses to employees or employee groups who do not suffer a reportable injury of illness in a given time period, or disqualifying an employee or group of employees from receiving an incentive if anyone in the group has a reportable injury or illnesses.

The new rule takes this internal enforcement policy to new heights by making any form of discrimination against employees for reporting work-related injuries and illnesses a violation subject to citations, penalties and abatement. It is important to note that the new rule does not prohibit or specifically regulate safety incentive programs. Rather, the preamble comments which accompany the new rule state simply that: “. . . programs must be structured in a way as to encourage safety in the workplace without discouraging the reporting of injuries and illnesses.” Little guidance is provided as to what constitutes an impermissible safety incentive program, with the exception of OSHA’s position that denying an employee a benefit, such as a bonus, because he or she reports a work-related injury would discourage or deter a “reasonable employee” from reporting the injury or illness. Only time will tell how OSHA interprets and enforces these guidelines. For now, here are a few recommendations:

1. Do not read the new rule as banning safety incentive programs. Many employers have implemented successful incentive programs as part of an effective safety and health program. They can continue.
2. Employees should never be disciplined for simply reporting a work-related injury and illness, but employers can continue to discipline employees who violate established safety rules, including the requirement to report work-related injuries and illnesses in a manner required by the company’s written policy. Treat these cases carefully, and make sure the discipline is appropriate for the offense.
3. Consider adding positive rewards that are not directly tied to injury and illness rates, such as identification of hazards or participation in other aspects of the safety program.
4. Like any other employee policy, safety incentive programs could result in a violation if they are enforced in a discriminatory or arbitrary matter, or when the policy becomes a “pretext” or sham excuse for retaliation against the employee. Make sure all safety incentive programs are administered in a fair and consistent manner.
5. Be alert to any situation where any employees are in fact discouraged or prohibited from reporting work-place injuries and illnesses, and take appropriate action. Situations could include employee misunderstandings, or supervisors not allowing employees to report.
6. Repeat the new employee notice requirements in any incentive plan.

Post-Incident Drug Testing

To the surprise of many, the preamble comments to the new recordkeeping rule address post-incident drug test policies which, like incentive programs, OSHA believes can deter employee reporting of work-related injuries and illnesses. The rule itself is silent on drug testing and OSHA makes it clear that the new rule does not ban drug testing. OSHA also concedes in the preamble that nothing in the rule supersedes state or federal laws which permit or require drug testing. Nonetheless, the comments state:

To strike the appropriate balance here, 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 the impairment caused by drug use.

These comments provide no guidance whatsoever and, in fact, make little sense. How can an employer possibly determine if drug use was “likely to have contributed to the incident” before it decides to require a drug test or learn the result? What drug test can possibly “accurately identify impairment caused by drug use?” “Impairment” has many meanings. What does OSHA mean? Requiring or threatening drug testing only for those employees who report work-related injuries and illnesses does raise a valid issue, but absent a requirement in the rule itself, it is our recommendation at this time that employers need not modify existing drug policies.

Resources

OSHA has developed a new web page discussing all aspects of the new rule, which can be found at https://www.osha.gov/recordkeeping/finalrule/index.html. The web site contains the Final Rule, Preamble comments and other information.

Sherman & Howard invites you to attend a complimentary presentation covering the requirements. Click here for more information or to register for the presentation.

Rod Smith, Pat Miller, Chuck Newcom and Matt Morrison are part of Sherman & Howard’s Labor & Employment Law Department. They routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.

Sherman & Howard L.L.C. has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.

©2016 Sherman & Howard L.L.C.                                                                                             May 24, 2016