Articles Client Alerts / 11.09.2016

OSHA Issues Memorandum Clarifying Reasonableness and Anti Retaliation Requirements of New Rule on Workplace Injuries and Illnesses

By Melissa A. Yasinow

On October 19, 2016, the Occupational Safety and Health Administration (“OSHA”) issued a Memorandum clarifying certain provisions of its May 12, 2016 Final Rule regarding the electronic reporting of workplace injuries and illnesses. KJK analyzed the Final Rule in a previous Article.

The Final Rule requires employers to establish a “reasonable procedure” to encourage employees to promptly and accurately report work-related injuries and illnesses. The Final Rule also expressly prohibits employers from retaliating against employees who report workplace injuries and illnesses. The Memorandum clarifies when an employer’s reporting procedure is “reasonable” and when unlawful retaliation may be found.

Reasonableness Clarification

OSHA considers an employer’s reporting procedure “reasonable” if it is not unduly burdensome and would not deter a reasonable employee from reporting. A “reasonable procedure” must allow for an employee to report a work-related injury or illness in a reasonable manner and within a reasonable timeframe after the employee has realized that they have suffered a recordable injury or illness. Factors that OSHA considers in determining if a procedure is “reasonable” include:

  • Timing: It is reasonable to require employees to report work-related injuries or illnesses as soon as practicable after realizing that they have the kind of injury or illness that must be reported. It is not reasonable to have a rigid prompt-reporting requirement that disciplines employees for failing to “immediately” report an injury or illness as some employees may be incapacitated or otherwise may not realize the severity of their condition.
  • Reporting Method: It is reasonable to require employees to report to a supervisor through phone, email, or in person. However, it is not reasonable to require an ill or injured employee to report in person if they are unable to do so. Likewise, it is unreasonable to require employees to undertake unjustifiably cumbersome steps or an excessive number of steps to report.

Anti-Retaliation Clarification

OSHA’s Memorandum clarifies when an employer unlawfully retaliates against employees for reporting workplace injuries and illnesses in three scenarios: (i) disciplinary policies; (ii) post-accident drug testing policies, and; (iii) employee incentive programs.

  • Disciplinary Policies: OSHA permits employers to discipline employees who violate legitimate safety rules or reasonable reporting procedures. However, under the Final Rule, employers may not discipline an employee simply because they reported a work-related injury or illness. In determining if a disciplinary policy is retaliatory, OSHA may evaluate whether the employer equally treats employees who violate the same rule in the same way. Likewise, OSHA may analyze whether the employer has a legitimate business reason for disciplining an employee for a rule violation.
  • Drug and Alcohol Testing: OSHA permits employers to drug test employees who report work-related injuries and illnesses so long as they have an objectively reasonable basis for the testing. OSHA will not issue citations for employers who conduct drug tests in compliance with other state or federal law, such as state workers’ compensation laws. Factors that OSHA may consider in its analysis are whether the employer:
    • Has a reasonable basis for concluding that drug use could have contributed to an injury or illness;
    • Tested all employees involved in the incident, or just the employee who reported an injury or illness, and;
    • Has a heightened interest in determining drug use due to the hazardousness of the work being performed.
  • Incentive Programs: OSHA permits safety incentive programs, but forbids employers from taking adverse action against reporting employees. For example, an employer may not condition a raffle on employees not reporting workplace injuries or illnesses during a given time period. However, employers may host raffles for employees who participate in safety training courses or for those employees who comply with legitimate workplace safety rules (i.e. using required hard hats).

Should you have any questions or concerns about how OSHA’s Memorandum may impact you or your business, contact Rob Gilmore and Alan Rauss of KJK’s Labor & Employment Practice Group.