Another day. Another regulation.

OSHA releases ruling intended to reduce retaliation for reports of workplace injury and illness

It sometimes feels there’s a new regulation released every day, right? Maybe not daily, but certainly often enough to make it tough to keep up with changes. Have you seen the latest and will you be ready for compliance starting August 1st(this has since been delayed to December 1)

In case you missed it, the Occupational Safety and Health Administration (OSHA) recently issued a final ruling on employer mandates related to reporting injuries and illnesses. Here’s the basics of the ruling:

  • Employers are specifically prohibited from retaliating against employees who report workplace injuries and illnesses.
  • Reasonable reporting procedures are required so employees are not discouraged or intimidated from prompt or accurate reporting.

It’s easy to classify some policies as “retaliation”—like terminating someone after they file an injury claim—but the new regulation tries to define retaliation more broadly. OSHA says retaliation can be anything that may deter employees from filing an injury or illness report, including certain disciplinary policies, post-accident drug testing and even some safety-incentive programs. Comments included with the ruling include three specific areas of questionable practices:

  1. Punitive policies: Employers will face OSHA scrutiny if they use injury reports as a part of discipline, performance or promotional decisions. Of additional concern: if injured employees are disproportionately disciplined as a result of safety rules.
  2. Post-accident drug testing: Testing or the threat of testing after an accident or injury has been reported should not be done unless there is clear cause to do so. This includes when drug use is likely to have contributed to the incident and the test used can show the individual was impaired at the time of the incident. As the ruling states, “In other words, employers may not rely upon blanket testing policies that allow the employer to drug test anyone who suffered an injury or illness, regardless of the nature or cause of the injury or illness.”
  3. Using safety incentive programs to punish: OSHA will be looking for safety programs that seem to deter employees from making a claim, such as those that deny a benefit if an incident is recorded. Instead, OSHA recommends incentive programs that reward employees who follow required safety guidelines or promote participation in the company’s safety programs and education.

There is also an electronic filing requirement of injury and illness information for companies with 250 or more employees and some smaller companies in certain industries, including manufacturing, healthcare, retail and transportation.  Although the reporting requirements do not go into effect until January 1, 2017, the anti-retaliation stipulations become effective August 10, 2016, meaning it’s time to review the specifics of your own reporting and policies now. To read the rule itself and learn more about it, visit https://www.osha.gov/recordkeeping/finalrule/.