The Occupational Safety and Health Administration (OSHA) recently released a memorandum explaining "in more detail" two provisions added to the recordkeeping regulation: Section 1904.35(b) (1)(i) requiring "employers to have a reasonable procedure for employees to report work-related injuries and illnesses"; and Section 1904.35(b)(1)(iv) prohibiting retaliation for reporting work-related injuries and illnesses.
"Reasonable" Reporting
Section 1904.35(b)(1)(i) requires employers to implement a "reasonable" system for employees to use in reporting work-related injuries and illnesses. The guidance adds little to the explanation included when OSHA issued the original amendments to the recordkeeping regulation. OSHA reiterates that employers must give employees a "reasonable timeframe after the employee has realized that he or she has suffered a recordable work-related injury or illness and in a reasonable manner." A procedure requiring employees to report "as soon as practicable after realizing" they are injured is "reasonable," but it would not be "reasonable" to discipline employees for "failing to report before they realize they have a work-related injury" or "for failing to report 'immediately' when they are incapacitated because of the injury or illness."
Anti-Retaliation
When it issued the final amendments to the regulation, OSHA identified three policies that "can be used to retaliate against workers for reporting work-related injuries or illnesses and therefore discourage or deter accurate recordkeeping: disciplinary policies, post-accident drug testing policies, and employee incentive programs." Section 1904.35(b)(1)(iv) is not "prohibiting these kinds of policies categorically" and "does not impose any new obligations or restrictions on employers." Instead, the provision simply "gives OSHA another mechanism to address conduct that has always been unlawful" under Section 11(c) (the whistleblower provision) of the Occupational Safety and Health Act.
To prove a violation, OSHA must show: (1) "[t]he employee reported a work-related injury or illness"; (2) "[t]he employer took adverse action"— "action that would deter a reasonable employee from accurately reporting a work-related injury or illness"; and (3) "[t]he employer took the adverse action because the employee reported a work-related injury or illness."
Post-Accident Drug Testing
Post-accident drug and alcohol testing is not prohibited. Rather, Section 1904.35(b)(1)(iv) prohibits post-accident testing only when the employee reports an injury and a test is conducted "without an objectively reasonable basis." The "central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed." The factors OSHA will consider include whether "other [non-injured] employees involved in the incident" are tested and whether the employer "has a heightened interest in determining if drug use could have contributed to the injury or illness due [to] the hazardousness of the work being performed."
OSHA provides an example: A crane accident injures several employees working nearby but not the operator. Given the facts, "there is a reasonable possibility that it could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in safe working condition." Testing all of the involved employees is "appropriate," while testing only the injured employees "would likely violate section 1904.35(b)(1)(iv)."
Finally, OSHA clarifies a troubling issue regarding the type and timing of the test. OSHA originally stated that the test must measure impairment at the time of the injury. OSHA now says it "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." "OSHA will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs." In light of this language, employers can discipline employees based on positive drug tests for marijuana and other drugs where the test is not capable of measuring the level of impairment at the time of the injury.
Safety Incentive Programs
Safety incentive programs only violate this provision if a benefit—"such as a cash prize drawing or other substantial award"—is taken away because an employee reported an injury or illness.
OSHA offers this example: A raffle for a $500 gift card at the end of "each month in which no employee sustains an injury that requires the employee to miss work." If the raffle is cancelled "simply because an employee reported a lost-time injury without regard to the circumstances of the injury, such a cancellation would likely violate section 1904.35(b)(1)(iv) because it would constitute adverse action against an employee simply for reporting a work-related injury."
Final Thoughts
The guidance offers several key takeaways for employers. Although OSHA does not say it specifically, the guidance seems to confirm that safety incentive programs and post-accident drug testing policies potentially violate the anti-retaliation provision and not the "reasonable" reporting provision. This means that the mere existence of a program is not enough to violate the regulation even though it may deter employees from reporting. Instead, OSHA must show a specific instance of retaliation against an employee.
Second, OSHA did not specifically address the types of safety incentive programs described in the 2014 memorandum concerning companies in the Voluntary Protection Program. The memo describes "blended" programs that include a component based on meeting injury and illness rate goals. Given that OSHA did not address these types of programs, the assumption is that they do not violate the anti-retaliation provisions.
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