The Department of Labor Occupational Safety and Health Administration (OSHA), issued new rules requiring employers to electronically submit injury and illness data to be posted to OSHA’s website. Under these rules, employers must establish a reasonable procedure for reporting this data, in a way that does not deter or discourage employees from disclosing work-related injuries and illnesses. This requirement axiomatically draws into question all safety incentive programs, post-incident drug testing and even disciplinary policies currently in place in the private sector across the country. Although the long-term efficacy of the new rules will likely depend upon the outcome of court cases pending in federal courts in Texas, its implementation was delayed until Dec. 1, 2016.
The Catalyst Behind OSHA’s New Rules
In March 2012, OSHA issued its “Employer Safety Incentive and Disincentive Policies and Practices” guidance, which examined the dynamics involved in determining whether a company unlawfully discriminated or retaliated against its employees in addressing work-related injury or illness. This anti-retaliation guidance focused on policies that discipline every employee injured on the job, or for not timely/properly reporting incidents and/ or violating a safety rule. According to OSHA, a policy that always disciplines employees injured on the job as a general rule and regardless of fault, inherently violates several OSHA regulations that protect an employee’s core right to report a work-related injury and require an employer to establish an employee injury reporting procedure. However, policies that discipline based on improper reporting or violation of a safety rule, require careful investigation into each incident that results in disciplinary action to determine whether discipline is proper or unlawful. This guidance also recognized the importance of examining safety incentive programs to ensure they do not deliberately or unintentionally discourage workers from reporting work-related injuries.
A Shift in OSHA’s Regulatory Landscape
OSHA’s proposed record-keeping rules significantly change this regulatory landscape. Although OSHA afforded automatic legitimacy to certain post-accident policies, timely reporting procedures, vague safety policies and safety incentive programs, and made determination of unlawful conduct dependent on a fact-specific analysis, the new rules could render such blanket policies and programs in and of themselves inherently unreasonable and OSHA non-compliant.
When it comes to timely reporting, the new rules examine how discipline, related to violating a policy on timely reporting of injuries, discourages workers from reporting injuries. Because a worker does not necessarily notice an injury occurred during an incident, OSHA notes that a policy on timely reporting must account for latency periods, or injuries that build over time or are not initially serious in nature. Consequently, such a policy will be deemed unreasonable, if it is not written in a manner that fosters reporting within a reasonable time aft er the employee’s realization, that a work-related injury occurred. In other words, the policy must support reporting not from the incident, but from the moment the worker realizes an actual work-related injury occurred.
With respect to discipline for violation of a vague safety policy, application of such a policy to all safety violations – regardless of whether a work-related injury results – is critical. Vague safety policies may ultimately survive the new rules, but tailoring them in a manner, that memorializes application, regardless of whether an injury resulted is likely key to remaining compliant.
The new rules also approach post-injury drug testing differently. While automatically testing post-injury was viewed as compliant in the past, OSHA will now view such a policy as discouraging workers from reporting work-related injuries for fear of testing. Policies will need to be written in a manner, that does not test post-accident where the likelihood of employee drug use is low or the test method identifies use rather than impairment. Although post-accident drug testing mandated through state or federal laws will remain lawful and appropriate, all policies for other post-accident drug testing will be held to this new scrutiny.
Finally, safety incentive programs are clearly viewed under the new rules as highly problematic and suspect. Programs that exclude workers from safety bonus eligibility based on reporting or that create peer pressure in the workplace to not report injuries will be considered noncompliant. Suffice it to say that establishing or using safety incentive programs that ultimately discourage workers from reporting work-related injuries, and accurate record-keeping will be deemed unlawful under the new rules.
How Should Employers Respond?
With the less than a month remaining to prepare for OSHA’s implementation of its new record-keeping rules, it’s critical that employers examine what steps need now be taken to ensure compliance. Remember, training of management is key – especially given the shift in how discipline for incidents and post-accident testing will be examined under the new rules. Sarah Moore