OSHA’s Injury Tracking and Anti-Retaliation Rule

OSHA modified its injury recording rule to require the direct electronic reporting by employers of injury and illness data to OSHA. The final rule became effective on August 10, 2016. OSHA will publish the individual employer’s injury and illness data history on its public website thereby providing access to this information by employees, employers, union representatives, attorneys, and the public at large. OSHA also delayed enforcement of the anti-retaliation aspect of the final rule until November 1, 2016. The anti-retaliation provision is set forth in 29 CFR 1904.35 and requires employers to:


  • Establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. OSHA has indicated a procedure is not reasonable if it discourages or deters a “reasonable employee” from accurately reporting a workplace injury or illness;


  • Inform each employee of the procedure for reporting a work related injury or illness; and


  • Inform each employee that they have the right to report work related injuries and illnesses free from retaliation or discrimination by the employer.

The Occupational Safety and Health Act already prohibits discrimination by an employer against any employee for reporting injuries and illnesses under Section 11(C). However, OSHA previously was not able to independently take action under Section 11(C) until an employee filed a complaint within 30 days of the alleged act of retaliation. Now, under this new rule, OSHA will be able to issue citations and assess penalties against an employer for retaliation even if employees do not file a complaint.

Employers should be aware that OSHA has indicated in commentary to the rule that most post-accident drug testing policies as well as certain safety incentive programs likely violate the new anti-retaliation rule. OSHA recommended that drug testing should be limited to situations in which the alleged drug impairment is likely to have contributed to an accident, and for which the appropriate drug test can accurately identify impairment. OSHA indicated that standard automatic post-accident drug testing policies, unless implemented pursuant to workers’ compensation law, likely deter reporting without contributing to workplace safety. Similarly, OSHA contends that certain employee incentive programs may violate the new anti-retaliation rule because they discourage the reporting of work injuries and illnesses.

Employers, therefore, should review handbook policies, drug testing policies, and workplace safety incentive programs to ensure compliance with this new anti-retaliation rule.  For more information, watch our free 30 minute webinar on the new rules here, or contact a member of our Labor & Employment law practice.



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