New OSHA anti-retaliation rules deferred to November

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New Occupational Safety and Health Administration rules prohibiting retaliation against workers who report workplace accidents that were slated to come into effect on Aug. 10 have been deferred to Nov. 1.

The anti-retaliation provisions are part of a two-part initiative.

The first part of the rule — to be phased in beginning July 1, 2017 — relates to the mandatory annual submission of injury and illness data electronically to OSHA. But the second section which includes the anti-retaliation provisions has become most controversial, in part because it has been challenged in a Texas lawsuit brought by eight employer groups including the National Association of Manufacturers.

Electronic filing of OSHA forms

“Until now employers had to complete the 300 logs, 301 forms and 300A summaries but they only had to submit them if they were the subject of an OSHA investigation,” says Shontell Powell, an associate attorney with Ogletree Deakins in Washington D.C. “Since there are so many U.S. employers and so few compliance officers, that didn’t happen very often.”

However, starting in mid-2017, OSHA’s record-keeping regulation has been amended to require every establishment with 250 or more employees at an individual location to annually upload OSHA logs, forms and summaries electronically.

In addition, the revised regulation requires establishments in industries viewed as “high hazard industries,” (i.e. construction, manufacturing, utilities and agriculture) with 20 to 249 employees to electronically submit only their 300A summaries. Subsequently all of the material uploaded will be posted on a universally accessible public website that may be used to target inspections.

See also: Breaking down OSHA final rule on electronic tracking of workplace injuries and illnesses

These rules had their genesis in a 2010 letter to the U.S. Department of Labor from David Michaels, Assistant Secretary of Labor for Occupational Health and Safety. Michaels wrote, “The most effective means for OSHA to encourage elimination of life threatening hazards … is to publicize the names of violators, especially when their actions place the safety and health of workers in danger.” He dubbed this enforcement initiative “regulation by shaming.”

But Powell says, “The fear is that a lot of information will be presented with little context that could unfairly portray employers in a negative light.” And since it is not yet clear how OSHA is going to present the data on their website, she says concerns have also been raised about violation of employee privacy.

Another potential issue for employers is that because the OSHA information will now have to be electronically filed, the use of “equivalent” documents like workers’ compensation forms that contain the same information will no longer be permitted. “The net result will be an additional burden on employers,” says Ben Huggett, a shareholder in the Philadelphia office of the law firm Littler Mendelson P.C.

OSHA anti-retaliation rules

Because OSHA wants employees to proactively report workplace injuries and accidents, it is not surprising that early in the consultation process for the new rules concerns were raised that employees who do so could be the subject of employer retaliation. As a result, when the final rule was published in mid-May it contained anti-retaliation provisions scheduled to come into effect 90 days later.

The new rule initially provided that beginning Aug. 10, employers would be required to inform employees of their right to report workplace injuries and illness; inform them employers were not permitted to retaliate; establish and widely communicate a reasonable procedure for employee reporting; and, provide employees and their representatives with access to non-redacted illness and injury records.

Huggett views the anti-retaliation provisions as simply an attempt by OSHA to make the existing prohibition on retaliation contained in section 11C of the governing legislation part of the regulations so the agency can issue a citation and penalty related to retaliation, as opposed to the statutory framework which requires employees to file a complaint and commence an action in Federal Court.

“But OSHA health and safety investigators are not trained to deal with retaliation claims and neither are the administrative law judges who hear appeals from OSHA citations,” he says.
Corollary to these new anti-retaliation provisions OSHA went so far as to suggest that they will take action against employers for any programs that might discourage reporting like certain types of employer safety incentive programs and some forms of post-event drug-testing.

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“An employer might have a program where if you go six months without an injury you qualify for a raffle to win a TV or if your team goes the whole quarter without injuries they get a pizza party,” Powell says. “From OSHA’s perspective — and a lot of people don’t necessarily agree with them — these programs could discourage employees from reporting illnesses or injuries because they or their co-workers may no longer be eligible for these incentives.”

Therefore it is not surprising that a collection of eight Texas employer groups including manufacturers, builders, an insurance company, a steel company and a property management company took OSHA to court. They are asking for injunctive relief from the new rule generally, or at least as it would apply to employer safety incentive programs and routine mandatory post-incident drug testing. In addition they seek a declaratory judgment that the new rule exceeds OSHA’s statutory jurisdiction and authority.

OSHA’s official reason for pushing back the implementation of the anti-retaliation provisions from Aug. 10 to Nov. 1 is to provide more guidance to employers, but Powell and Huggett agree that the pending litigation was likely a significant catalyst for the delay.

So what, if anything, should employers be doing in response to the new rules?

“They should just continue with their record-keeping as they have done all along and be prepared to submit these records once they get further instructions from OSHA,” Powell says. “However, it doesn’t really make a lot of sense to make significant changes to safety incentive or drug testing programs until the pending litigation is resolved one way or the other or we get additional instructions from OSHA.”

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