Earlier this year, the Occupational Safety and Health Administration (OSHA) issued a final rule requiring certain employers to electronically submit data from their work-related injury records to OSHA to be published online.
Fearing that this publicity would lead employers to discourage employees from reporting injuries and illnesses, OSHA included anti-retaliation provisions in the final rule, which goes into effect Dec. 1.
Ok, so that’s a lot of government legalese, so what does that mean for employees and the companies they work for? Let’s break it down.
OSHA’s new anti-retaliation provisions:
- Require employers to inform employees that they have a right to report work-related injuries and illnesses free from retaliation
- Direct employers to adopt reasonable procedures that employees can use to report work-related injuries and illnesses; and
- Prohibit employers from retaliating against employees solely because they report work-related injuries or illnesses.
According to the final rule, a procedure or system is reasonable if it is not unduly burdensome and does not deter or discourage employees from reporting workplace injuries or illnesses.
OSHA published an interpretation of how the new anti-retaliation provisions affect employee discipline, drug and alcohol testing, and safety incentive programs. In this interpretation OSHA explains that to establish a case of retaliation, OSHA inspectors will need to prove that:
- An employee reported a work-related injury or illness;
- The employer took an adverse action against the employee reporting the injury or illness; and
- The adverse action was taken because of the report and not because of a legitimate business reason.
Adverse action includes:
- Discharging, demoting or denying a substantial bonus or other significant benefit.
- Assigning the employee “points” that could lead to future consequences.
- Demeaning or embarrassing the employee.
- Threatening to penalize or otherwise disciplining an employee for reporting.
- Requiring employees to take a drug test for reporting without a legitimate business reason.
So what does this really mean? Can employees be disciplined for getting injured on the job by not following safety procedures? Yes. Can they get disciplined for reporting the workplace injury to OSHA? No.
Two other things to know
The final rule prohibits employers from adopting blanket policies that require all employees to submit to drug and alcohol testing after reporting a work-related injury. According to OSHA, requiring (or the threat of requiring) employees to submit to drug and alcohol testing after reporting an injury—regardless of the reasons and circumstances surrounding the incident—is a form of adverse action.
Under the final rule, employers may continue to implement employee safety incentive programs to encourage workplace safety and promote more worker participation in safety-related activities. However, withholding a substantial bonus or significant benefit from an employee—solely because the employee reported an injury or illness—is a form of adverse action.
Enforcement
Historically, OSHA’s role in enforcing anti-retaliation protections has been reactive, meaning that it could investigate and cite employers only after receiving a retaliation claim.
However, the new anti-retaliation provisions allow OSHA to take a more proactive enforcement role. OSHA will not need to wait until a retaliation claim is filed to issue a citation against an employer if OSHA finds that the employer is discouraging appropriate reporting. In light of increased OSHA penalties and a new, more comprehensive inspection process, OSHA’s ability to cite employers for anti-retaliation violations becomes a greater potential threat to noncompliant employers.
More Information
We will continue to monitor this and other OSHA developments and update you with relevant information. In the meantime, please contact Get Benefits Insurance for more information on the anti-retaliation provisions, the electronic reporting final rule or other OSHA compliance questions.