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4477
Phone: 281.880.6525

Retaliation Rule
and Other
Changes
Coming from
OSHA

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The Occupational Safety and Health Administration (OSHA) has been busy.
The agency recently clarified the definition of "retaliation" in a provision that
will take effect in November. Also, earlier this year, OSHA finalized a new set of
rules governing how you track and report workplace injuries and illnesses.
Here are some details about the changes to come.

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Details, Please
OSHA sees a revision to the anti-retaliation provision as necessary because, as
written, it "prohibits employers from discouraging employees from reporting
an injury or illness." The agency also seeks to better inform employees that
they have the right to report work-related injuries and illnesses without the
fear of retaliation.

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As always with federal regulations, the devil is in the details. The antiretaliation provision "clarifies the current implicit requirement that an
employer's procedure for reporting work-related injuries must be reasonable
and not deter or discourage employees from reporting," OSHA states.

One change employers will notice in the anti-retaliation provision is the

elimination of the 30-day-after-the-fact deadline for employees to report
suspected retaliation to OSHA. When the new rule takes effect, the agency
will be able to come after an employer even in the absence of an employee
complaint.

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Gauging Employer Motivation

The new anti-retaliation provision will require OSHA inspectors to go beyond
simply looking for apparent violations to trying to assess employer
motivations behind policies and actions.
What actions might "deter or discourage" an employee from reporting an
injury? One example might be if a company offers incentives for a perfect
safety record. Could that be considered undue pressure on workers to avoid
reporting injuries? Possibly.
It's not enough, in OSHA's eyes, for employers to avoid making it hard or
undesirable for employees to report injuries or illnesses. The agency states
that employers should actually use incentives "to encourage safe work
practices and promote worker participation in safety-related activities.

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What about a policy of

automatic drug testing of
workers injured on the job?
The regulations don't bar
drug testing as a general
matter.

In fact, OSHA gives its

blessing to drug testing that
promotes compliance with
state or federal law or
regulation. However, the rule
prohibits employers from
using drug testing as a form
of retaliation.

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Clarification Needed
OSHA is using the time between now and November 1, when the antiretaliation provision takes effect, to develop educational materials intended to
shed some light on the gray areas discussed above.

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Meanwhile, it would be prudent for employers that have post-accident drug

testing policies to consider these questions:

Is the policy applied no matter what the nature of the accident, or tailored
toward accidents that would most likely have been caused or influenced
by drug use?

Can the test gauge impairment or merely the presence of drugs in the
system?

Do safety incentive programs focus exclusively on reportable injuries? If

the answer is yes, such a program would probably raise red flags at OSHA.

If an employee accident results in a disciplinary action, is the action based

on an established policy and tied to work rules? If the answer is no, this
might contribute to an appearance of retaliation.

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Electronic Reporting
As mentioned, along with revisions to the anti-retaliation provision, OSHA has
issued final rules regarding electronic reporting. To wit, employers already
subject to OSHA's existing rules that have been reporting on paper must soon
begin filing reports electronically. This change takes effect on January 1, 2017.
According to the agency, electronic filing will:

1. Make it easier for OSHA to analyze accident statistics with the goal of
improving efficiency and enforcement, and
2. "Nudge" employers to redouble their safety efforts. The prospect of the
world having easy access to injury data is what will provide that nudge,
says the agency.

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The compliance timetable and criteria of the overall injury reporting rule
(which is distinct from the anti-retaliation provision) vary by "establishment"
size and industry. An establishment, by OSHA's definition, is "a single physical
location where business is conducted or where services or industrial
operations are performed." The size of an establishment is based on its peak
employment in the prior year.
Establishments with 250 or more employees must begin electronically
submitting information from the 300A form by July 1, 2017, and submit
information from all forms (the 300A, 300 and 301) the following year. In
2019, the deadline moves up to March 2.

If your establishment is smaller (20 to 249 employees) and in one of more

than 40 industries identified by OSHA as high risk, you need to file the 300A
by July 1, both in 2017 and 2018. As with the larger establishments, in 2019
the deadline is March 2.

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Start Now
Every employer should begin preparing now to comply with the revised antiretaliation provision. You have a little more time with the electronic reporting
rule, though it wouldn't hurt to start assessing what you'll need to do there as
well. After all, keeping OSHA at bay may be the best way to avoid adding insult
to injury.

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Phone : 281.880.6525
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