BRIEF OVERVIEW:
On May 12, 2016, the Occupational Safety and Health Administration (OSHA) issued a final rule requiring certain employers to electronically submit data from their work-related injury records to OSHA. OSHA intends to publish this employer information on a public website.
Fearing that this publicity would lead employers to discourage employees from reporting injuries and illnesses, OSHA included anti-retaliation provisions in the final rule. Since the final rule was issued, additional developments have occurred:
On Oct. 12, 2016, OSHA announced it would delay enforcement of the anti-retaliation provisions to 1, 2016, due to a lawsuit challenging the rule.
On Oct. 19, 2016, OSHA published an interpretation of how the anti-retaliation provisions affect employee discipline, drug and alcohol testing, and safety incentive programs.
ACTION STEPS:
Despite the court challenge, the anti-retaliation provisions are scheduled to take effect on Dec. 1, 2016. For this reason, employers should review their programs and policies to comply with the new rule and OSHA’s recent interpretation.
- Employers must inform their employees of their right to report workplace injuries and illnesses.
- Blanket, mandatory drug testing policies for reporting workplace injuries are prohibited.
- Incentive programs must not discourage employees from reporting workplace incidents.
ENFORCEMENT:
Historically, OSHA’s role in enforcing anti-retaliation protections has been reactive, meaning that it could investigate and cite employers only after receiving a retaliation claim.
However, the new anti-retaliation provisions allow OSHA to take a more proactive enforcement role. OSHA will not need to wait until a retaliation claim is filed to issue a citation against an employer if OSHA finds that the employer is discouraging appropriate reporting. This is possible because the new rule integrates the new anti-retaliation provisions into OSHA’s regulations, allowing OSHA to enforce them through its citation process.
In light of increased OSHA penalties and a new, more comprehensive inspection process, OSHA’s ability to cite employers for anti-retaliation violations becomes a greater potential threat to noncompliant employers.
NEXT KEY DATE:
The first electronic reports are due to OSHA by July 1, 2017.
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The above information has been abstracted from a Zywave Compliance Bulletin.
This blog post is made available for informational purposes only and is not offered or intended to be construed as legal advice. For legal advice, contact an attorney.