By Eric J. Conn and Dan C. Deacon
OSHA’s new electronic injury recordkeeping rule includes anti-retaliation provisions that create new employer obligations and prohibitions related to internal employee injury reporting procedures, and expands OSHA’s enforcement authority by introducing a vague new set of anti-retaliation provisions. Particularly controversial is the impact of OSHA’s new rule on employers’ policies for post-injury drug testing, safety incentive programs, and executive compensation and bonuses. Until very recently, employers have seen little guidance about what OSHA means by reasonable reporting procedures or what types of policies may violate the new anti-retaliation provisions.
On October 19, 2016, OSHA issued a Guidance Memorandum offering its interpretation of the vague, controversial anti-retaliation provisions of OSHA’s new electronic injury and illness recordkeeping rule. The timing of OSHA’s issuance of the October Guidance is particularly noteworthy, given developments in the legal challenge filed by Industry plaintiffs in a federal district court in Texas (TEXO ABC/AGC, Inc., et al. v. Perez, Civil Action No. 3:16-cv-01998-D), which we have described in previous articles. Specifically, just one week before issuing the Guidance Memo, OSHA deferred the enforcement effective date of the anti-retaliation provisions, for the second time, from November 1st to December 1st. This second delay of the anti-retaliation rule was done at the specific request of the Texas judge overseeing the case, who is considering industry’s request for a Preliminary Injunction.
The Guidance is not unexpected. Amidst growing frustration from Industry about the rule and its lack of clarity, OSHA promised last summer when it decided to first postpone the enforcement date from August 1, 2016 to November 1, 2016, to publish guidance explaining the new provisions. Indeed, OSHA’s defense against Industry’s motion for a preliminary injunction against the rule is that there is no way Industry can show irreparable harm from the new rule because there was no way for employers to know what the rule actually prohibits and requires.
Before this Guidance Memo was released, OSHA had provided little understanding of precisely what was intended by the new requirement for employees to implement “reasonable reporting” procedures for employees to report work-related injuries to their employers, and by the greatly expanded enforcement authority given the agency to prevent purported employer “retaliation” against employees for reporting injuries and illnesses and/or to disincentivize them from reporting in the first place. The Guidance still leaves a lot of questions unanswered about the new rule, but it does provide at least some idea of OSHA’s expectations about its new rule. The new Guidance addresses, to some degree, what OSHA intends by “reasonable” reporting procedures, and specifically, what type of employee discipline, post-incident drug testing, and safety incentive programs would be considered retaliatory, and therefore violative of the new rule.
As many questions about the substance of the rule remain after this Guidance Memo, even more questions remain about the future of the rule in light of the pending legal challenge, and perhaps more so because of the election of Donald Trump, who joins a Republican-controlled Congress in January 2017. Since the current December 1st effective date is right around the corner, and the district court Judge has still not ruled on the preliminary injunction motion, we anticipate OSHA will once again delay the effective date of the rule. Then, based on recent decisions coming out of the federal courts in Texas (e.g., enjoining enforcement of both the FAR Blacklisting Rule and the Dept. of Labor’s overtime rule), we would hardly be surprised to see the Judge grant the Industry Plaintiffs’ motion to enjoin OSHA from enforcing the rule, nor would be surprised to see President Elect Trump and the Republic Congress use their Congressional Review Act authority to repeal the rule.
Nevertheless, because the effective date is upon us, and since the courts and Congress are not predictable, Employers would be well served to understand OSHA’s new Guidance Memorandum, and be prepared to comply with the new anti-retaliation provisions in the event they survive the current litigation and somehow remain below the radar of the new Administration.
Guidance About “Reasonable” Reporting Procedures
New section 1904.35(b)(1)(i) of the recordkeeping regulation requires employers to establish a:
“reasonable procedure for employees to report work related injuries and illnesses promptly and accurately. . . . [A reporting procedure] is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”
The Rule does not define reasonableness, and OSHA did not explain in the Preamble to the final rule what would be considered a reasonable reporting policy. The Preamble did, however, make clear that a policy that either requires “immediate” reporting of an injury, or that creates an “undue burden” on employees to complete a report violates this new requirement.
OSHA’s October Guidance Memo now provides some additional insight as to what OSHA considers a reasonable reporting policy. Specifically, OSHA states that employers may implement policies that require employees to report a work-related injury or illness:
“as soon as practicable after realizing they have the kind of injury or illness they are required to report to the employer,“ such as the next business day.
In contrast, however, OSHA explains that it is not reasonable to discipline employees for failing to report an injury before the employee realizes he has a reportable work-related injury, or for failing to report while the employee is incapacitated.
The key inquiry is whether the employer’s policy provides some amount of time to report after the employee has realized that he or she has suffered a reportable work-related injury or illness. OSHA is trying to accommodate employees who suffer injuries with long latency periods, or who are unaware they have suffered an injury serious enough that warrants reporting to their employer.
Guidance About Impermissible Reporting Requirement and Discipline
The new rule added paragraph (b)(1)(iv) to 1904.35 to incorporate explicitly into the regulation the prohibition against retaliating for reporting a work-related injury or illness – a prohibition already explicit in Section 11(c) of the OSH Act itself.
Neither the vague language of the regulation nor the Preamble to the final rule offered any clear sense of what sort of polices would and would not be considered “retaliatory.” However, the Preamble did highlight three types of policies – employee disciplinary policies related to safety rule violations; post-incident drug testing policies; and employee incentive programs – that will be scrutinized by OSHA to determine whether they create a retaliatory environment.
The Guidance Memo clarifies that employee discipline for violating workplace safety rules is not prohibited, and further provides insight how OSHA will determine whether disciplinary policies or actions violate the new rule. Specifically, to establish a violation of 1904.35(b)(1)(iv) in a case where an employer disciplines an employee who reports a work-related injury because the employee violated a workplace safety rule, OSHA will need to prove that the actual reason for the disciplinary action was that the employee reported an injury or illness, rather than the violation of the safety rule. The central inquiry, according to OSHA’s new Guidance, is whether the employer enforces the same safety rule consistently; i.e. disciplines employees who violate the rule even where there is no related injury.
OSHA has also indicated it will scrutinize discipline more if the safety rule supposedly violated is generic; e.g., “not working safely” or “not maintaining situational awareness.”
As for disciplining an employee for violating an injury reporting deadline (e.g., all injuries must be reported within 24 hours or the employee will be disciplined for late reporting), OSHA’s Guidance states that the Agency will evaluate whether a legitimate business reason for the discipline exists, or whether the time limit exists simply to discourage employees from reporting at all once that time period lapses. In analyzing a disciplinary action based on a late report of injury, OSHA indicated it will consider several factors:
- The reasonableness of the reporting deadline;
- Whether the employee had a reasonable explanation for missing the deadline;
- Whether the employer has a substantial interest in the rule and its enforcement; and
- Whether the discipline imposed appears proportional to the employer’s interest in the rule.
While these factors are still vague, they at least provide some insight into OSHA’s thinking about company injury reporting policies. To steer clear of a citation from OSHA, employers need to ensure employee discipline is reasonable in relation to the employee’s conduct, and is imposed for a legitimate reason, such as, a need to promptly investigate an incident before evidence is disturbed.
Guidance About Post-Incident Drug Testing
While new section 1904.35(b)(1)(iv) does not explicitly mention drug testing policies, the Preamble to the final rule calls into serious question employers’ right to conduct post-accident drug testing, stating that:
“blanket post-injury drug testing policies deter proper reporting.”
Note that drug testing other than post-incident testing, such as pre-employment and random drug testing, is not impacted by OSHA’s new rule.
OSHA’s October Guidance goes on to clarify that employers are not categorically banned even from performing post-incident drug testing. First, as the Preamble also recognized, OSHA will not issue citations for drug testing when it is required under some other federal or state laws, or by a workers’ compensation obligation. Beyond this, OSHA’s Guidance states that:
“[t]he general principle here is that drug testing may not be used by the employer as a form of discipline 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.”
According to OSHA, the rule is tailored to prohibit only “drug testing for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so.” OSHA’s new guidance informs us that when evaluating whether an employer had an “objectively reasonable basis” for post-injury drug testing an employee who reports a work-related injury, the central inquiry is whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury based on the following factors:
- 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 the case of the injury);
- Whether other employees involved in the incident (but who did not report being injured themselves) were also drug tested;
- Whether the employer has a heightened interest in determining if drug use could have contributed to the injury due the degree of hazard associated with the work being performed at the time of the injury; and
- Whether the drug test is capable of measuring impairment at the time the injury occurred (as opposed to a general confirmation that drug was used at some time in the recent past). Note however, OSHA’s guidance clarifies that this factor will only be considered for tests that measure alcohol use, not any other drugs.
To illustrate OSHA’s views of what type of post-accident drug testing is allowed, the October Guidance Memo provides the following example:
A crane accident injures an employees working nearby but not the crane operator himself. The employer does not know the cause of the accident, but there is a reasonable possibility it could have been caused by operator error or by mistakes made by other employees responsible for ensuring the crane was in safe working condition. In this scenario, it would be reasonable to require all employees whose conduct could have contributed to the accident to take a drug test, whether or not they reported an injury. Testing would be appropriate in these circumstances because there is a reasonable possibility that the results of drug testing could provide the employer insight into the root causes of the incident. However, if the employer tested only the injured employee, but did not test the operator and other employees whose conduct could have contributed to the incident, this would likely be cited by OSHA.
Employers should revisit their post-incident drug testing policies and provide guidance to the field about when and which employees should be tested following a workplace incident. Employers must have a reasonable basis to suspect that drugs and/or alcohol caused or contributed to the incident, and the testing should be applied to all who may have caused or contributed to the incident, as opposed to only those who report an injury. Ultimately, OSHA believes an employer’s drug testing policy must be used as a tool to evaluate the root causes of workplace injury, not as a form of discipline or to discourage employees from reporting injuries.
Guidance About Safety Incentive Programs
OSHA’s October Guidance Memo also provides further insight into the Agency’s view of employer safety incentive programs. OSHA has for several years expressed concern about the purported chilling effect of certain types of safety incentive programs. While recognizing that certain types of incentive programs can be helpful in driving a positive safety culture, OSHA explained in the Preamble to this rule that “if the programs are not structured carefully, they have the potential to discourage reporting of work-related injuries and illnesses without improving workplace safety.”
OSHA’s ire has been directed at those incentive programs that reward the absence of injury or withhold rewards from an individual or group for someone having reported a recordable injury, or for not achieving a certain injury rate. The Guidance Memorandum essentially reiterates OSHA’s concerns, but also provides examples of permissible incentive programs — namely “positive” safety incentive programs. For instance, OSHA states that raffling off a $500 gift card each month in which employees universally complied with legitimate workplace safety rules – such as using hard hats and fall protection – would not violate the rule.
The key is whether the reward or benefit to the employee (whether it is the dreaded pizza party, a gift card, a monetary bonus, entering the employee’s name in a raffle, etc.) is based on leading indicators (such as complying with a safety rule, completing training, etc.) v. lagging factors (injury rates). Lagging indicator programs are likely to be found impermissible. Such programs include those that:
- Exclude workers from prizes or awards if they have reported an injury during a certain period of time;
- Provide rewards to employees or crews for remaining “injury free” for a certain amount of time; or
- Provide rewards to employees or crews based on low recordable injury rates.
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If the Texas court does not enjoin OSHA from enforcing its new anti-retaliation provisions before the December 1st enforcement date, then post-incident drug testing policies, rigid injury reporting deadlines, and safety incentive programs based on lagging indicators will be under serious scrutiny as we head into 2017. Accordingly, employers would be wise to review OSHA’s October 19th Guidance Memorandum to understand how their current company policies and programs will square up under OSHA’s new regulation.
As stated above, however, OSHA’s entire new electronic injury recordkeeping rule, and in particular these controversial provisions related to reporting workplace injuries, will be under its own scrutiny by the new Administration and Congress. Stay tuned.
For more background on the new Recordkeeping Rule (both the electronic record submission and the anti-retaliation elements), check out the recording of this webinar by attorneys in Conn Maciel Carey’s national OSHA practice.