Clarity Emerges On New OSHA Post-Incident Reporting Rules

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Edward F. Hennessey IV
Robinson Bradshaw Publication
Feb. 3, 2017

In May 2016, federal OSHA published final amendments to its rule regarding employee involvement in reporting occupational injuries and illness (29 C.F.R. 1904.35). The preamble to the rule made clear that OSHA added these provisions due to concerns about retaliation under the guise of existing disciplinary, post-accident drug testing and employee incentive programs. Following a series of postponements, including by court injunction, the anti-retaliation amendments took effect
Dec. 1, 2016. 

What do the amendments mean for these existing programs? Both the official and practical lines are that no such program is automatically invalid. Officially, OSHA acknowledges that to cite an employer for retaliation under Part 1904, it must have reasonable cause to believe that a violation occurred. Demonstrating reasonable cause requires OSHA to show that: 

The concerns that motivated the anti-retaliation amendments are that some existing employer programs, even though well intended, may either have the effect of discouraging accurate injury or illness reporting or serve to disguise retaliation.

Disciplinary Programs

An employer can lawfully discipline an employee for violating safety-related rules. What OSHA will look for here is whether the employer consistently enforces these rules against employees who aren’t injured or made ill by their violations. An enforcement history that implies the employer enforces these rules more often or more harshly against employees who incur reportable injuries or illnesses will be a red flag under the amendments.

Drug and Alcohol Testing

The concern here is that testing programs that are too broad—such as testing every employee “involved” with a workplace accident—can discourage employees from reporting injuries or illness, for fear of adverse action based on a positive result. OSHA will look for “an objectively reasonable basis” for requiring post-accident drug or alcohol testing. The “general principle here,” says OSHA, “is that drug testing … may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances.”

Federal or state laws, including workers’ compensation laws, that require post-accident testing are “objectively reasonable” bases for testing. As an initial observation, employers who pursue post-accident or -injury testing to obtain the benefit of workers’ compensation discounts, for example under a state Drug-Free Workplace initiative, or insurance premium discounts are not subject to citation under the amendments.

If an employer tests without one of these per se “objectively reasonable” grounds, it must have “a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.” Drug testing an employee who reports an injury that could not have been caused by drug use, for example a repetitive strain injury, would betray a lack of reasonable basis. Drug testing only the injured personnel from an incident involving others, for example a crane accident that could have been a product of operator error, poor maintenance or misdirection from ground personnel, is another red flag.

A fair summary would be that OSHA wants employers to ask whether drug or alcohol use could have contributed to a reported injury or illness, and if yes, to test all personnel whose use could have played a role in the chain of events culminating in injury or illness. A subtext here is that when drug or alcohol testing is not on one of the per se grounds, the employer should take the time to document its grounds for testing at all, and for defining the pool to be tested. The documentation exercise may also impose its own form of discipline, encouraging management to think about whether testing is appropriate at all, and whom to test.

Employee Incentive Programs

Programs that reward employees, individually or as teams, for good safety records may present the most subtle problems under the amendments. On the one hand, “OSHA encourages employers to find creative ways to incentivize safe work practices and accident-prevention measures.” On the other, these may not “disproportionately penalize workers who report work-related injuries or illness.” If an employer withholds an incentive because of a reported injury or illness, it looks as if what OSHA will evaluate is whether the reported issue reveals a violation of a “legitimate workplace safety” rule. For example, an employee who violates a rule requiring her to wear a hard hat, and who is injured as a result, probably gives the employer a basis to withhold from her or her team an incentive based on personal or team compliance with the rule. If the same employee wears her hard hat, but is injured through no fault of her own, withholding the incentive looks more like adverse action for reporting the injury.

Keep in mind that part of what OSHA is trying to control here is the disincentive to report injuries or illness that incentive programs can create. And these disincentives can themselves be subtle or indirect, for example when reporting may deprive the team or whole workforce of a benefit. The example OSHA offers is a gift card raffle linked to achievement of safety metrics. If these metrics don’t distinguish mishaps due to violation of rules, say failure to wear a hard hat, from mishaps outside the injured employee’s control, they can produce “adverse action” in the case of reported injury or illness.

As many questions as these amendments raise, they are clear in one respect: OSHA may now investigate and react to retaliation for injury or illness reporting even without a retaliation complaint. Prior to the amendments, OSHA retaliation claims usually arose based on a complaint of adverse action from a current or former employee. Employers concerned whether a disciplinary, drug testing or incentive program squares with these amendments are well-advised to consult legal counsel.

Employers interested in OSHA’s own detailed explanation of the Part 1904 amendments should review its Oct. 19, 2016 memorandum, available here.

For more information regarding these OSHA regulations, please contact a member of Robinson Bradshaw's Employment and Labor Practice Group.

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