Careful You Aren’t Breaking OSHA’s New Rules on Reporting Illnesses and Injuries

On January 1, 2017, the Occupational Safety and Health Administration (OSHA) put new injury-reporting rules in effect for standard 29 CFR 1904. While most of the changes deal with how, why and when affected companies need to report injuries on the job, it doubles down on prohibiting employers from discouraging, or retaliating against, employees reporting work-related injuries and illnesses. And, while OSHA already prohibits retaliation against employees who report an injury, they now can cite an employer for doing so without the aid of an employee complaint.

Section 1904.35(b)(1)(iv) specifically outlines three areas that most companies have in place where potential troubles lie: disciplinary programs, incentive programs and drug testing. The line between retaliatory and non-retaliatory in these three spots is razor-thin.

Drug testing

An employer can’t use post-accident drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness. Employers still can conduct post-incident drug testing if there is a reasonable chance that employee drug use might have been a contributing factor. For example:

OSHA says this is retaliatory drug-testing: Employer requires an employee to submit to a drug test after he reported a work-related repetitive motion injury. The employer has no reasonable basis to think drug use contributed to the employee’s injury, and it has no other basis for demanding a drug test. Furthermore, it is discovered that this employer routinely subjects all employees who report work-related injuries to a drug test, regardless of the circumstances.

OSHA says this is non-retaliatory drug testing: Employee severely injures his arm when the forklift he drove too fast tips over. After he reports the injury to his employer, they require that he take a drug test.

Incentive Programs

Some employee safety incentive programs are acceptable under the new rule. However, it cannot provoke the underreporting of injuries and illnesses, which would impair accurate reporting.

This is a retaliatory incentive program: Employer announces it will hold a prize drawing for each work group at the end of each month in which no employee in the work group sustains a lost-time injury. An employee reports an injury she sustained while operating a mechanical press, and her injury requires her to miss four days of work. Employer cancels the cash prize drawing for her work group because of the injury.

This is a non-retaliatory incentive program: Employer informs its employees that it will hold a substantial cash prize drawing for each work group at the end of each month in which all members of the work group comply with applicable safety rules, such as wearing required fall protection. An employee sustains a lost-time injury after falling from a platform while not wearing required fall protection, and he reports it to the employer. Employer cancels the prize drawing for that employee’s work group because he failed to wear the fall protection. The employer also actively monitors its entire workforce for compliance with applicable work rules, and cancels cash drawings when it discovers rules violations, regardless of whether the employee who violated the work rule also reported an injury or illness.

Scenario #1 is retaliatory because an employer cannot incentivize not getting injured or ill at work.

Disciplinary programs:

The rule prohibits any disciplinary action taken against an employee simply because they report work-related injuries or illnesses without regard to circumstances, such as automatically suspending them or docking them points that have future employment consequences.

An example of a retaliatory disciplinary program, according to OSHA: Employee twists an ankle at work, but does not realize that he is injured. He continues to work on the ankle for a few days, but then realizes it has gotten so bad it is affecting his work, so he reports the injury. The employer terminates the employee for failing to report the injury within 24 hours.

An example of a non-retaliatory disciplinary program, according to OSHA: Employee twists her ankle but does not immediately realize she is injured. The next morning, the ankle is painful and swollen and she knows it is the type of injury her employer requires her to report. However, even though she could easily have reported the injury, she waits two weeks to do so. Employer disciplines her for failing to report her injury as soon as practicable.

At times, OSHA compliance is like navigating a minefield blindfolded. Even with the best intentions, you will probably have a misstep at some point. Only with proper training can you minimize your risk at work.