Employee Reporting of Workplace Injuries and Illnesses
On May 12, 2016 OSHA published a final rule amending 29 CFR 1904.35. The new rule revised the previous standard by adding two new provisions: section 1904.35(b)(1)(i) makes explicit the longstanding requirement for employers to have a reasonable procedure for employees to report work-related injuries and illnesses, and (b)(1)(iv) explicitly incorporates into Part 1904 the existing prohibition on retaliating against employees for reporting work-related injuries or illnesses under section 11(c) of the OSH Act, 29 U.S.C. § 660(c).
OSHA will consider it a violation of this new rule if they can show that an employer either lacked a procedure for reporting work-related injuries or illnesses, or that the employer had a procedure that was unreasonable (difficult to follow). An employer’s reporting procedure is considered “reasonable” if it is not unduly burdensome and would not deter a reasonable employee from reporting a workplace injury or illness. The reporting procedure must also allow for reporting of work-related injuries and illnesses within a reasonable timeframe after the employee has realized that he or she has suffered a recordable work-related injury or illness.
For example, it would be reasonable to require employees to report a work-related injury or illness immediately, or the same or next business day when possible, or as soon as practicable after realizing they have the kind of injury or illness that they are required to report. However, it would not be reasonable to discipline employees for failing to report the injury before they realize they have sustained a work-related injury that they are required to report, or for failing to report "immediately" when they are incapacitated because of the injury or illness, or unable to report the injury because of other existing circumstances (no supervisor is available or the employee is working at a remote location or job-site.) A rigid prompt-reporting requirement that results in employee discipline for late reporting even when the employee could not reasonably have reported the injury or illness earlier would violate section 1904.35(b)(1)(iv).
It would also be “reasonable” to require employees to report to a supervisor through reasonable means, such as by phone, email, radio, or in person. However, it would not be reasonable to require ill or injured employees to report in person if they are unable to do so. Likewise, it would not be reasonable to require employees to take unnecessarily cumbersome steps or an excessive number of steps to report their injury.
Section 1904.35(b)(1)(iv) prohibits employers from retaliating against employees for reporting work-related injuries or illnesses. OSHA promulgated section 1904.35(b)(1)(iv) to address concerns about three types of policies that can be used to retaliate against workers for reporting work-related injuries or illnesses: disciplinary policies, post-accident drug testing policies, and employee incentive programs. OSHA does not prohibit these kinds of policies categorically, and section 1904.35(b)(1)(iv) does not impose any new obligations or restrictions on employers. Rather, section 1904.35 provides a mechanism to address conduct that has always been unlawful, that is, retaliating against employees for reporting work-related injuries or illnesses.
Section 1904.35(b)(1)(iv) also does not prohibit employers from disciplining employees who violate legitimate safety rules or reasonable reporting procedures. Rather, it prohibits disciplining employees simply because they report a work-related injury or illness. When disciplining an employee who violates a work rule and is subsequently injured, OSHA will evaluate whether the employer treated other employees who violated the same rule in the same way, that is, the employer took the same disciplinary action—regardless of whether those employees reported a work-related injury or illness.
Similarly, in cases involving an employer rule about the time, place or manner for reporting an injury or illness, OSHA will evaluate whether the employer had a legitimate business reason for the discipline or whether the rule was used as a pretext for disciplining the employee for reporting a work-related injury or illness. OSHA will consider factors such as the reasonableness of the rule; whether the employee had a reasonable basis for the deviation; whether the employer has a substantial interest in the rule and its enforcement; and whether the discipline imposed appears proportionate to the employer’s interest in the rule. If OSHA determines that the real reason for the discipline was the report of an injury or illness, OSHA may issue a citation under section 1904.35(b)(1)(iv).
Section 1904.35(b)(1)(iv) does not prohibit employers from drug testing employees who report work-related injuries or illnesses so long as they have an objectively reasonable basis for testing, and the rule does not apply to drug testing employees for reasons other than injury-reporting. Moreover, OSHA will not issue citations under section 1904.35(b)(1)(iv) for drug testing conducted under a state workers’ compensation law or other state or federal law. Drug testing under state or federal law does not violate section 1904.35(b)(1)(iv). See sections 4(b)(1) and 4(b)(4) of the OSH Act, 29 U.S.C. §§ 653(b)(1) & (4).
Section 1904.35(b)(1)(iv) only prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so. When evaluating whether an employer had a reasonable basis for drug testing an employee who reported a work-related injury or illness, the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness. If so, it would be objectively reasonable to subject the employee to a drug test. When OSHA evaluates the reasonableness of drug testing a particular employee who has reported a work-related injury or illness, it will consider factors including whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred), whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness, and whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due the hazardousness of the work being performed when the injury or illness occurred. OSHA will only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available. Therefore, at this time, OSHA will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.
The general principle here is that drug testing may not be used by the employer as a form of discipline or retaliation against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances.
Furthermore, drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv). For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury. And, section 1904.35(b)(1)(iv) prohibits employers from administering a drug test in an unnecessarily punitive manner regardless of whether the employer had a reasonable basis for requiring the test.
Section 1904.35(b)(1)(iv) does not prohibit safety incentive programs. Incentives that promote safety awareness, safety training, injury and illness reporting, and worker involvement in safety issues are acceptable parts of an injury and illness prevention program. A positive incentive program encourages or rewards workers for completing safety training courses, reporting injuries and illnesses, near-misses, workplace hazards, participation in safety committees and for active involvement in other forms of injury and illness prevention efforts. Examples of positive incentives include providing tee shirts to workers serving on safety and health committees, offering modest rewards for suggesting ways to strengthen safety and health policies and programs, and throwing a recognition party at the successful completion of a company-wide safety and health refresher training period.
An incentive program that focuses on injury and illness numbers often has the effect of discouraging workers from reporting an injury or illness. Examples of unacceptable incentive programs include those that award paid time off or make cash payments to employees that have no recordable injuries during a defined period of time, or a reward to a department that has the greatest reduction in recordable injuries during a defined period, or even a celebratory party for employees when the company achieves an injury rate reduction goal.
Incentives that discourage injury and illness reporting are not acceptable. Companies with incentive programs that have the potential to discourage employee reports of workplace injuries and illnesses are likely in violation of Section 1904.35(b)(1)(iv).
For additional information on the revised standards, contact a consultant at the USF SafetyFlorida Consultation Program, or go to www.osha.gov and use the “Search Box” to look up additional guidance on the subject.