In the Wake of Criticism of the E-Recordkeeping Anti-Retaliation Rule, OSHA Issues New “Guidance”

By Eric J. Conn and Beeta B. Lashkari

On May 11, 2016, OSHA published its Final Rule for injury and illness recordkeeping electronic data submissions — what we refer to as the E-Recordkeeping Rule. The rule fundamentally changed OSHA’s long-standing injury and illness recordkeeping program by requiring injury and illness data to be proactively shared with OSHA, which intended originally (and still, but after some delay) to publicize the data for all the world to see. The 2016 E-Recordkeeping Rule required:

  1. All establishments with 250 or more employees in industries covered by the recordkeeping regulation to submit to OSHA annually their injury and illness data and information from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries.
  2. Establishments with 20-249 employees in select “high hazard industries” to annually submit information from their 300A Annual Summaries only.

In addition to the electronic data submission requirements, the E-Recordkeeping also introduced (out of left field) some new anti-retaliation restrictions that were intended to eliminate employer policies that may discourage employees from reporting injuries, purportedly for the nefarious purpose of reducing the numbers of injuries the employer has to share with OSHA.  These anti-retaliation provisions included very generic, vague language, but through a series of memos, interpretation letters, and other guidance, we have learned that the anti-retaliation elements primarily restrict employers’ use of safety incentive programs (prizes for injury-free work), post-incident drug testing, executive compensation and bonuses, and post-incident discipline.  Although none of those terms even appears in the 2016 regulatory text, OSHA included a panoply of new restrictions impacting very common workplace policies and programs in the Preamble to the Final Rule.  For more information about the controversial anti-retaliation elements of the E-Recordkeeping Rule, check out our previous blog post.

Since promulgation in May 2016, implementation of all aspects of the Rule has been mired in difficulty.  Shortly after launching the Injury Tracking Application (ITA) to collect injury data, OSHA had to disable the site to work out some data security issues. Then the deadlines to submit data became a moving target. As OSHA was repeatedly pushing the data submission deadline, OSHA made several announcements about expected changes to the Rule (and possible rescission), including a Spring 2018 announcement that it would not require submission of 300 and 301 data from any employer — just the 300A Annual Summary data.  Then there were the legal challenges.  Shortly after the rule was promulgated, industry groups  brought a legal challenge to the anti-retaliation elements of the rule and sought a preliminary injunction to prohibit enforcement of those portions of the rule. (TEXO ABC/AGC v. Perez, No. 3:16-cv-01998-D (N.D. Tex. July 8, 2016)).  On June 29, 2017, the Trump Administration filed a motion to stay the proceedings on the basis that OSHA was considering revisions to the rule that could make the legal challenge moot; i.e., signalling that it was likely the anti-retaliation provisions would be rescinded. The judge administratively closed the case pending further rulemaking by OSHA.

After a couple of years of these informal changes, extended deadlines, industry challenges, shifting guidance, and signals of big change to come, on July 30, 2018, OSHA finally rolled out a Notice of Proposed Rulemaking to amend the E-Recordkeeping Rule. However, rather than settling the status of this Rule, this proposal just mired the Rule in further controversy.  The Proposed Rule includes only one significant change to the current regulation — elimination of the requirement for the largest employers, those with establishments with 250 or more employees, to annually submit to OSHA the data from their 300 logs and 301 detailed incident reports.  The proposal leaves intact the requirements for these large employers and many smaller employers to annually submit 300A annual summary data via OSHA’s electronic portal.

What was surprising and most concerning to employers, however, is that the proposed rule does not disturb in any manner the highly controversial “anti-retaliation” provisions, or the interpretations of those provisions included in Preamble to the 2016 Final Rule. OSHA’s rationale for the proposal is based on protecting worker privacy by eliminating the electronic collection of case-specific data containing identifying employee information and sensitive health information about specific individuals.  The agency has apparently now recognized that collection of such information, which is all over OSHA Forms 300 and 301, adds uncertain enforcement value, yet poses a potential privacy risk because, even if the agency successfully scrubbed the portal data to protect this information, it might still be made public pursuant to a Freedom of Information Act (FOIA) request.  Because no such employee privacy concern exists associated with the 300A Annual Summary data (because that data is not included on 300A forms).

However, because of the tiny scope of this proposed change (i.e., not touching the controversial anti-retaliation elements), employers’ other concerns with the Rule were ignored.  Given President Trump’s commitment to deregulation and clearing unnecessary burdens from employers, the proposed change – which took more than a year to publish – is a major disappointment.

Comments to the proposed amendments were due to OSHA by September 28, 2018. Conn Maciel Carey LLP organized a very large coalition of employers and trade groups to comment on the rule.  Although OSHA was specifically seeking comment only on the proposal to cut out the 300 and 301 data submission requirements, our E-Recordkeeping Coalition delivered comments to OSHA that also addressed the anti-retaliation elements that restrict safety incentive programs, post-injury drug testing, and post-incident discipline. Here is a link to the full set of comments submitted on behalf of our E-Recordkeeping Coalition.

Whether prompted by our comments or already in the works, a couple weeks after the close of the comment period, OSHA issued a new memo clarifying OSHA’s position on safety incentive programs and post-incident drug testing.  The memo addresses some of the issues our E-Recordkeeping Coalition raised to OSHA.

For example, in our comments, we raised the fact that there was confusion over OSHA’s guidance on safety incentive programs, particularly with respect to the types of precautions OSHA would consider sufficient to balance rate-based safety incentives to avoid discouraging reporting.  OSHA provides some guidance on this in its new memo, describing those types of precautions by way of a few examples.

With respect to drug testing, we raised several issues related to OSHA’s October 19, 2016 guidance, commenting that it provided employers with inadequate notice as to when post-incident drug testing would run afoul of the Rule’s anti-retaliation provisions.  OSHA’s new memo attempts to resolve those concerns, stating that most instances of workplace drug testing are permissible under the rule, and providing a list of examples of permissible drug testing.  The memo makes clear that it supersedes previous guidance on these topics insofar as inconsistencies are identified.  This of course would include the October 19, 2016 guidance document on workplace drug testing that we criticized in our comments.

While the new guidance seems to be helpful, our initial review suggests that it does not move the needle very much, nor does it resolve the fundamental uncertainties and concerns with OSHA’s anti-retaliation provisions in a clear and permanent way. First, as to safety incentive programs, the memo appears to be nearly identical to the 2017 updated VPP memo on the same topic.  Although the new memo does provide select elements that employers can implement to avoid any inadvertent deterrent effects of their safety incentive programs, the elements are limited, and the descriptions are vague, at best.

Second, as to drug testing, the new memo also appears similar to all of the past guidance on that topic.  For example, OSHA states that drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees is permissible, so long as all employees whose conduct could have contributed to the incident, not just employees who report injuries, are tested.  We posted an article about this almost two years ago, and based on the available guidance, we were already advising that drug testing must have a reasonable connection to the cause of an incident, and that testing should be applied to all who may have caused or contributed to the incident, as opposed to those who reported a resulting injury.  Granted, rather than focusing on whether there is a reasonable basis that the incident type was one which drugs or alcohol may contribute, the new memo allows employers to just show the testing was done in connection with an investigation to determine the root cause of an incident.  We are concerned, nevertheless, that employers will have just as hard a time showing that they conducted the testing to evaluate root causes as a showing that they tested because of a “reasonable suspicion” that drugs could have contributed to the accident.

Regardless of what the memo actually says, the fact that OSHA decided to issue yet one more guidance document on the topic highlights the fundamental concern we raised in our comments.  That is, the solution we believe is necessary is to either eliminate the anti-retaliation provisions or provide real, clear definitions around the provisions through rulemaking, not guidance.  As the long line of memos and other guidance demonstrates, guidance comes and goes, and can be flipped or dropped on a whim.  Rulemaking, on the other hand, tends to stand the test of time.  A rulemaking would provide employers and employees alike the opportunity to submit comments on these provisions, and to gain some certainty about the future of the Rule.

Accordingly, while we are pleased to see some movement, we continue to believe further rulemaking is necessary.  In the meantime, however, employers should become familiar with the latest round of guidance issued by OSHA on safety incentive programs and drug testing and adapt their policies and procedures as necessary.

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