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In May of this year, OSHA announced a final rule which requires electronic reporting and public disclosure of companies' injury data, and also, a provision that prohibits employers from discriminating against workers or encouraging workers not to report injuries. Examples of policies cited in the rule that may be considered retaliatory, and possibly, in violation of Section 11(c) of the Occupational Safety and Health Act, include requirements for immediate reporting, employer incentive programs and post-accident drug testing.

Several industry associations have challenged the "anti-retaliation" provisions of the new rule in federal court in Texas. OSHA announced on July 13 that the anti-retaliation provisions of the rule will not be enforced until November 1, 2016 and, apparently, plans to issue additional "guidance" on how to comply with those provisions. It is unclear, however, when such additional guidance will be provided.

A settlement reached between the DOL, U.S. Steel and the United Steelworkers union on July 15, however, may provide some indication as to what the upcoming "compliance guidelines" from OSHA will contain and what OSHA will consider as a “compliant” injury reporting policy. In the settlement, U.S. Steel rescinded its "immediate" injury reporting requirement and agreed to "never" reinstate it. Instead, U.S. Steel will implement a policy that requires employees to report "as soon as reasonably possible after becoming aware" of an injury or illness, but in no event later than leaving the plant or eight hours after becoming aware of the injury or illness, whichever is earlier. OSHA argued in the U.S. Steel lawsuit (filed in February 2016 in federal court in Delaware) that the company's policy requiring immediate reporting could discourage employees from later reporting due to fear of retaliation because employees do not always immediately recognize injuries when they occur. U.S. Steel also agreed to implement a new "incident without injury" reporting policy that requires employees to report such "near misses" as soon as reasonably possible, but in no event later than leaving the plant.

What This Settlement Means for Employers

While employers wait for the result of the Texas lawsuit challenging the new rule and OSHA’s additional "guidance" on the subject, the terms of U.S. Steel’s recent settlement provide an indication that OSHA will allow some enforcement of an "as reasonably as possible" injury reporting period and may step back from its earlier position that employees should have seven days to report such injuries. It is not clear, however, how OSHA will interpret the term "reasonably aware" in the future and, unless the rule is invalidated by the federal court in Texas, employers will still face an entirely new retaliation cause of action for employees beginning this November. Employees no longer have to file a Section 11(c) complaint to assert a retaliation claim. Instead, an employee simply files a complaint with the OSHA area office, and OSHA can issue a citation against the employer alleging a violation of the new anti-retaliation provisions.

In addition, the controversial language in the new rule discussing both post-accident drug testing and incentive plans remains, and it is not clear what types of incentive plans will be permitted and when post-accident drug testing will not be permitted. With regard to incentive plans, employers should look to the types of incentive plans and programs that OSHA has approved for companies in its Voluntary Protection Program as a guidepost. If an employer currently utilizes post-accident drug testing, those employers should now review their policies and no longer require across-the-board post-accident testing in connection with any accident or injury (unless required to by law). Those employers should also consider limiting the time within which such testing is conducted to avoid any inference that the testing is in retaliation for reporting an injury. Of course, for employers with employees represented by a labor union, these policy changes may have to be negotiated before any changes are implemented.