Recordkeeping rule’s anti-retaliation provisions in the spotlight

Privacy issues were center stage when, this past May, OSHA published the Improve Tracking of Workplace Injuries and Illnesses rule. The rule, which requires certain employers to electronically submit worker injury and illness data to the agency, drew criticism from numerous employer groups regarding OSHA’s intent to make the data available to the public.

Recently, however, the spotlight has turned to the rule’s anti-retaliation provisions:

• Employers must inform workers about their right to report work-related injuries and illnesses without the threat of retaliation. (Employers can do this by posting the OSHA Job Safety and Health – It’s the Law poster.)
• An employer’s reporting system for injuries and illnesses “must be reasonable and not deter or discourage employees from reporting.”
• Employers cannot retaliate against workers for reporting injuries and illnesses.

At press time, the agency had delayed the compliance date of the provisions, originally scheduled for Aug. 10, to Nov. 1 so the agency could provide additional guidance to employers. But prior to the announcement, on July 8, eight industry groups – including the National Association of Manufacturers and Associated Builders and Contractors – filed a legal challenge to block the rule. Among their concerns: The groups claim the anti-retaliation provisions unlawfully ban or limit safety incentive programs and “routine mandatory post-accident drug testing.”

In addition, OSHA’s newly increased authority regarding whistleblower complaints is being questioned.

Whistleblower complaints

Section 11(c) of the Occupational Safety and Health Act forbids firing or discriminating against a worker who reports a death, injury or illness. OSHA may act under this section if a worker files a complaint within 30 days of the alleged retaliation.

The new rule allows OSHA to cite an employer for retaliation even if the worker did not file a complaint. Critics have taken issue with this.

“With respect to the retaliation part, the biggest concern would be you have employers who have the possibility of a whistleblower claim without a whistleblower,” said Nicole Smith, a labor and employment attorney at Venable LLP in Washington. “I don’t know how you make the leap from no complaint being made to a violation being found without any complaint being made.”

OSHA believes some workers lack the time and knowledge to file a whistleblower complaint or fear further retaliation. “This new authority is important because it gives OSHA the ability to protect workers who have been subject to retaliation, even when they cannot speak up for themselves,” OSHA states in an online Frequently Asked Questions section about the rule.

Drug testing

According to OSHA, the provisions do not forbid drug testing workers. Rather, they prohibit employers from using post-incident testing – or the threat of testing – as a retaliatory measure.

“The evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting,” the agency notes, adding that policies should limit post-incident testing to when worker drug use likely contributed to the incident, and when the test can correctly identify worker impairment. For example, testing a worker who reports a repetitive strain injury or an injury from lack of machine guarding would likely be considered unreasonable.

However, the legal challenge filed July 8 claims that “By thus asserting that post-accident drug testing must be limited to those tests which can accurately identify impairment caused by drug use, OSHA has effectively prohibited all post-accident drug testing. … Aside from alcohol tests, there are no generally recognized and accepted drug tests showing actual impairment that are available at this time.”

It also points out that many states have workers’ compensation statutes that encourage post-incident and post-injury drug testing.

“By prohibiting mandatory post-incident drug testing programs, OSHA is taking away a valuable tool used in performing root cause analysis for accidents, which can help prevent future incidents,” Greg Sizemore, vice president of safety, health, environment and workforce development for the Washington-based Associated Builders and Contractors, said in a statement to Safety+Health.

Attorney Gregory Dale, partner at Faegre Baker Daniels in Indianapolis, emphasizes two elements OSHA is looking for from employer drug-testing policies.

“One, the drug testing needs to be limited to situations where the alleged drug use likely contributed to the incident,” Dale said. “The second thing is for which the drug test can accurately identify impairment caused by the substance abuse. The comment that OSHA gave is employers don’t need to specifically suspect drug use before testing, but there should be a reasonable possibility drug use was a contributing factor, so it does introduce a reasonable suspicion element.”

Dale advises employers to review their post-injury drug testing policies to see how they relate to OSHA’s expectations, 
as well as whether they include blanket testing that OSHA would disagree with or introduce reasonable suspicion language, and to ensure testing is designed to accurately identify impairment from substance abuse.

Incentive programs

The recordkeeping rule does not specifically ban incentive programs, but OSHA states that employers cannot have programs that discourage workers from reporting injuries or illnesses.

According to the agency, acceptable incentive programs reward workers for following safety rules rather than reporting injuries. This includes programs that support safety activities, such as identifying hazards or participating in incident investigations. Guidance from OSHA’s Voluntary Protection Programs list positive incentives such as giving T-shirts to workers on safety committees or hosting a party after safety training is completed.

OSHA also provides examples of programs that could discourage reporting. At one workplace, employees who reported an OSHA-recordable injury were left out of a drawing for a new television. Another employer awarded as much as $1,500 if no recordable injuries were reported.

As a result, workers may not report injuries to avoid upsetting co-workers who want to win a prize, the agency asserts.

Dale sees potential complications. “The difficulty some employers have is they have years of these kinds of incentives,” he said. “Just getting rid of them may create some morale issues. Sometimes they’re part of a union relationship, and you have to bargain about just taking those out or at least have some dialogue with the union about OSHA’s concerns.”

Charles Palmer is a Waukesha, WI-based attorney for law firm Michael Best & Friedrich LLP. Palmer said that although a program that provides pizza to workers if the facility achieves 200,000 hours without a lost-time incident differs from one that punishes a worker for having a lost-time incident, under the rule both employers may receive a citation. “There’s little discretion in the penalty structure, and the regulations are very ambiguous,” Palmer said. “Employers probably will scrap [programs] in many cases and will point to increases in injuries as having been caused by the elimination of the programs.”

The legal challenge filed July 8 argues that “properly designed incident-based employer safety incentive programs” are a valuable resource for motivating workers to improve safety.

“There’s been no proof there’s a correlation between underreporting and any types of these programs,” Amanda Wood, director of employment policy for the Washington-based National Association of Manufacturers, told S+H.

The challenge notes that a 2012 report from the Government Accountability Office found that three studies determined incentive programs decreased injuries, and a 2013 report about OSHA’s National Emphasis Program on Injury and Illness Recordkeeping concluded that, among workers who were interviewed for the report, nearly three times as many said they believed incentive programs spur injury reporting rather than discourage it.

In his statement to S+H, Sizemore said Associated Builders and Contractors “objects to the provision in this rule that seeks to restrict or eliminate programs that recognize workers for helping to establish a high-performance safety culture. World-class safety performance requires a companywide adoption of safety as a core value and preventing companies from recognizing safety accomplishments is counter-productive to establishing a high-performing safety culture.”

In May, OSHA administrator David Michaels said the agency will review incentive programs on a case-by-case basis. “We’re saying let’s look at the program and also what you incentivize,” Michaels said.

Groups such as NAM are concerned.

“The fact that Dr. Michaels is saying he’s going to look at these things on a case-by-case basis, and decide whether a company will be cited or not – it really gives no assurances to businesses whether their current policies need to be updated or changed or whether their current policies are fine,” Wood said.

‘Wait and see’?

Palmer is telling clients to take a “wait-and-see” approach before implementing comprehensive changes because OSHA delayed the compliance date. He finds the provisions troubling.

“OSHA feels that, in spite of the benefits of such policies, the negative impact on employee willingness to report an injury outweighs the benefits,” Palmer said. “However, the types of policies and methods of applying the policies are too numerous to list, and it is very likely that many policies have far greater positive than negative impact on safety, [but] will be subject to citation and penalty by OSHA if the rule is allowed to stand.”