As many of you know, OSHA recently published new rules that requires employers to post their OSHA logs electronically. But the new reporting rules also do a whole lot more.
Mark Lies is a labor law attorney with Seyfarth Shaw in Chicago, and is also a very close friend and colleague. He recently shared this information, which I am sharing here with his permission.
On May 12, 2016 the Occupational Safety and Health Administration published new final rules on discrimination and injury and illness reporting. 81 Fed. Reg. 29624. First, a new anti-discrimination and anti-retaliation rule will come into force on August 10, 2016 for all employers, as discussed below. Employees must be informed about the requirements of the anti-retaliation rule relating to reporting injuries and illnesses by that date. OSHA’s interprets this rule broadly to prohibit mandatory post-accident drug testing, concluding that such tests discriminate against employees on the basis of injury and illness reporting. OSHA further explains that incentive programs are retaliatory if they offer benefits to employees or workforces who do not report injuries and illnesses. Finally, OSHA uses the rule-making to allow compliance officers to issue citations for retaliation, upending the current statutory employee retaliation enforcement framework under Section 11(c) of the Act.
The regulations further require employers to post workplace recordable injury and illness information electronically. OSHA will release this employer injury and illness information publicly on its website, believing that its disclosure will “shame”
employers into improving workplace safety and health. The electronic data submission requirement will also ease OSHA’s data analysis, presumably to ramp up citations against employers based on the frequency of certain types of injuries (such as OSHA’s renewed focus on “ergonomics” injuries) or injuries caused by exposures to certain chemicals or toxic materials. The remaining provisions of the final rule, including the electronic reporting provisions, will take effect on January 1, 2017.
Section 1904.35(b)(1)(iv) of the final rules prohibits an employer from discharging or discriminating against an employee for reporting a work-related injury or illness. OSHA’s Preamble to the Final Rule interprets the regulation broadly to prohibit any “adverse action that could well dissuade a reasonable employee from reporting a work-related injury or illness.” OSHA applies the prohibition to any “blanket post-injury drug testing policies deter proper reporting,” concluding that drug-testing alone constitutes an “adverse employment action.” OSHA instructs employers to “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 impairment caused by drug use.” OSHA explains with examples: it “would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.”