The federal Occupational Safety and Health Administration (OSHA) recently issued new regulations creating notice requirements for employers intended to improve employee reporting of work-related injuries and illnesses. The new regulations take effect August 10, 2016.
Under these new regulations, employers are required to establish and communicate a reasonable procedure for employees to use to report work-related injuries and illnesses promptly and accurately. The regulations note that a procedure that “deters or discourages” an employee from reporting is not reasonable.
Furthermore, employers are required to notify employees that: (1) they have the right to report work-related injuries and illnesses; and (2) the employer is prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries and illnesses.
The regulations clarify that employees are protected from discrimination not only for making a report, but also in connection with an employee’s request for access to injury and illness records or an employee’s exercise of any other rights under the Occupational Safety and Health Act.
Clearly, the regulations prohibit an employer from taking disciplinary action against an employee because an employee has filed a report of a work-related injury or illness. In keeping with this, employers should ensure that safety policies and procedures clearly specify the kinds of behaviors that are required or prohibited and that violations of those policies are addressed uniformly, regardless of whether an injury or illness is reported.
What is less obvious is what is meant by “in any manner discriminate” against an employee. The preamble to the regulations, while not legally binding, provides valuable information about the agency’s perspective on this point. In this instance, the preamble focused on certain kinds of policies that might be seen as having a deterrent effect on employee reporting, including mandatory post-accident drug testing policies and “zero injury” incentive bonus programs.
OSHA suggests that post-accident testing should not be required automatically, which may deter employee reporting, but only where it is reasonably likely that impairment due to drugs or alcohol may have caused or contributed to the accident (and, furthermore, where the test will measure current impairment and not past use of substances). The agency expressly states, however, that mandatory post-accident testing that is required by law, such as transportation or workers compensation laws, is non-discriminatory. (As a side note, employers who are not currently subject to any legal requirement to conduct mandatory post-accident drug testing but who wish to maintain policies requiring it, should explore the new Maryland worker’s compensation law offering an insurance discount program to employers who maintain mandatory drug and alcohol free workplace programs, effective October 1, 2016.)
Citing peer pressure concerns, and suggesting that employees might not report work-related injuries or illnesses because doing so could deprive them, their co-workers, or managers, of incentive bonuses, OSHA also suggests that compliance incentive programs focus not on “zero injuries” but on “zero safety violations.”
What employers should do now:
- Review safety policies and procedures to ensure that they specifically identify required and prohibited behaviors.
- Review disciplinary procedures to ensure that they are implemented uniformly in the event of similar safety violations, and that they do not target employees who have filed reports of injuries or illnesses.
- Review work-related injury and illness reporting procedures to ensure that they are clear, easy to use, and would not deter an employee from reporting.
- Review alcohol and drug testing policies and procedures to determine whether they are applied in a non-discriminatory manner and/or in connection with a legal requirement.
- Review eligibility for the Workers Compensation Insurance Premium Discount – Alcohol and Drug Free Workplace Program with your workers compensation insurance carrier.
- Review incentive programs related to injury reporting and safety violations to determine whether they could have a deterrent effect on employee reporting.
- Give written notice to employees of work-related injury and illness reporting procedures no later than August 10, 2016.
- Give written notice to employees of their right to report work-related injuries and illnesses and to be free from discrimination and discharge no later than August 10, 2016.
Melissa Calhoon Jones, chair of the Labor and Employment Group, counsels companies on employment, labor, and immigration issues. For more information on this new requirement and other employment concerns, please contact Ms. Jones at 410.752.9765 or via email.
This information has been prepared by Tydings for informational purposes only and does not constitute legal advice.