On October 19, 2016, the Department of Labor (DOL) issued an interpretative memorandum (Memorandum) regarding the final rule issued by the Occupational Safety and Health Administration (OSHA) earlier in the year amending 29 C.F.R. 1904.35. The interpretative memorandum explains that employers must have reasonable procedures for employees to report work-related injuries and illnesses and, also, clarifies the prohibition on retaliation against employees for reporting work-related injuries or illnesses.
Reasonable Reporting Procedures
Under 29 CFR Section 1904.35(b)(1), employers must establish a reasonable procedure for employees to report work-related injuries and illnesses. A reporting procedure is reasonable if it is not unduly burdensome and would not deter a reasonable employee from reporting a work-related illness or injury.
By way of example, the Memorandum provides that a policy requiring employees to report an injury or illness as soon as practicable, such as the same or next business day, is reasonable. On the other hand, a policy that disciplines employees for not reporting before they realize they have a work-related injury or illness or a policy that disciplines employees for not reporting immediately even when they are incapacitated by the injury or illness, is not reasonable and would violate Section 1904.35(b)(1)(iv).
According to the Memorandum, employers should also permit employees to report through any reasonable means, such as by phone, email or in person, and not be required to take unnecessary or excessive steps to report.
Ultimately, to establish a violation of Section 1904.35(b)(1), OSHA must demonstrate that the employer either lacked a procedure for reporting work-related injuries or illnesses, or that the employer’s procedure was unreasonable.
Prohibition on Retaliation
Under 29 CFR Section 1904.35(b)(1)(iv), employers cannot retaliate against employees for reporting work-related injuries or illnesses. The Memorandum specifically focuses on three types of policies that can be used to retaliate against employees: disciplinary policies; post-accident drug testing policies; and incentive programs.
To issue a citation under Section 1904.35(b)(1)(iv), OSHA must demonstrate that: (1) the employee reported a work-related injury or illness; (2) the employer took adverse action against the employee that would deter a reasonable employee from accurately reporting a work-related injury or illness; and (3) the employer took the adverse action because the employee reported a work-related injury or illness. In evaluating a potential violation, OSHA will consider the reasonableness of the rule, whether the employee had a reasonable basis for not complying with the rule, whether the employer had a substantial interest in the rule and its enforcement and whether the discipline imposed appears proportionate to the employer’s interest in the rule. If the evidence shows that the adverse action occurred because of a legitimate business reason, there is no violation.
According to the Memorandum, employers may discipline employees who violate legitimate safety rules or reasonable reporting procedures. However, employers cannot discipline employees simply for reporting a work-related injury or illness. As the Memorandum explains:
To establish a violation of Section 1904.35(b)(1)(iv) in a case where an employer claims it disciplined an employee who reported a work-related injury or illness for a legitimate business reason, such as violating a workplace safety rule or a rule on the time, place or manner for reporting an injury or illness, OSHA will need to show that the real reason for the discipline was the reported injury or illness and not the rule violation. As is typically true in a discrimination case, circumstantial evidence can satisfy this burden, as direct evidence of the employer's real reason for the adverse action may not exist.
In these circumstances, when OSHA is evaluating whether the employer violated Section 1904.35(b)(1)(iv), the central inquiry is whether the employer treated other employees who violated the same rule in the same way—i.e., took the same adverse action—regardless of whether those employees reported a work-related injury or illness or whether the employer only or primarily used the rule against employees who reported a work-related injury or illness.
Drug and Alcohol Testing
For drug and alcohol testing policies, employers may continue to drug test employees who report work-related injuries or illnesses, as long as they have an objectively reasonable basis for testing the employees for reasons other than reporting. Also, OSHA will not issue a citation under this section for drug testing done pursuant to state workers’ compensation law or other state or federal law.
The key inquiry is whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness. For example, following a crane accident that injures several employees, the employer may require drug-testing for all employees whose conduct could have contributed to the accident, regardless of if they reported an injury or illness. The drug-testing would be reasonable under these circumstances as it would provide the employer insight on the root cause of the accident. However, drug-testing an employee whose injury could not possibly have been caused by drug use would violate this section.
Section 1904.35(b)(1)(iv) does not categorically prohibit incentive programs but does prohibit adverse action in connection with an incentive program against employees for reporting work-related injuries or illnesses. Conditioning a benefit based on compliance with legitimate safety rules or participation in safety-related activities would be permissible. For instance, raffling a gift card every month where employees universally comply with legitimate safety rules, such as wearing required hard hats, would not violate this section.
Employers should be mindful in constructing and applying their discipline, drug testing and incentive program policies to ensure that they are applied uniformly to all employees regardless of whether they report a workplace injury or illness. Decisions to discipline an employee who has reported a workplace injury or requiring drug testing should always be supported by a legitimate business reason.