Electronic Recordkeeping: OSHA Manages to Make a Bad Proposal Even Worse

In November 2013, the Occupational Safety and Health Administration (OSHA) proposed regulations requiring employers to submit injury and illness data electronically, rather than maintain paper OSHA Form 300 logs of work-related injuries and illnesses and Form 301 injury and illness incident reports. The proposal raised many concerns for employers. Perhaps most alarming was OSHA’s proposal to post each facility’s Form 300 logs and 301 forms online on the OSHA website. OSHA had reasoned that the conspicuous disclosure of such records would provide important information to the public and prospective employees. Others also observed that the impact of the proposed regulatory changes would provide substantial benefits to union organizers and plaintiffs’ attorneys.

Based on the continuing concerns of many stakeholders about the effects of OSHA’s proposed recordkeeping and reporting requirements, on August 13, 2014, OSHA announced it would solicit comments on whether to amend the proposed rule to add three provisions to its recordkeeping rules: (1) a requirement that employers inform their employees of their right to report injuries and illnesses free from discrimination or retaliation; (2) a provision requiring that any injury and illness reporting requirements established by the employer be reasonable and not unduly burdensome; and (3) a prohibition against disciplining employees for reporting injuries and illnesses. Interested parties have until October 14, 2014, to file comments.

OSHA proposed the retaliation provisions partly in response to comments from labor unions that the new electronic recordkeeping rules might result in the underreporting of injuries, because more employers might adopt practices and procedures that would discourage employees from reporting their injuries or retaliate against employees who did report them. As OSHA acknowledged in the proposal for the retaliation provisions, and in a March 12, 2012 memorandum, retaliating against an employee for reporting an injury or illness is already prohibited under section 11(c) of the Occupational Safety and Health Act (OSH Act). For example, discharging or discriminating against an employee for reporting an injury is a violation of section 11(c) of the OSH Act. Remedies for violations under section 11(c) include reinstatement of the employee to his or her former position with back pay. Adverse actions that discourage an employee from reporting an injury may also violate the existing recordkeeping regulations. Specifically, if a practice discourages an employee from reporting an injury, OSHA may cite the employer under the recordkeeping regulations for failing to record the injury. In proposing the additional anti-retaliation provisions, OSHA did not offer any evidence or commentary about why the agency deemed the existing anti-retaliation provisions to be somehow insufficient.

Under the proposed retaliation provisions, if an employer retaliates against an employee for reporting an injury or illness or otherwise discourages an employee from reporting an injury or illness, OSHA will not have to wait for the employee to file a whistleblower complaint alleging a violation of section 11(c). Instead, OSHA may initiate a recordkeeping inspection and issue citations for violations of the new anti-retaliation provisions in the recordkeeping regulation. In the proposal, OSHA claims that employers would be required to pay damages to employees to abate alleged violations of the proposed anti-retaliation provisions. For example, an employer may be required to reinstate and pay backpay to an employee discharged for reporting an injury or illness. OSHA’s authority to order that kind of relief in the context of abating an alleged violation of the recordkeeping regulation is dubious at best.  OSHA also provides no information regarding how such a system would work. Specifically, it is not clear whether OSHA claims the authority to require immediate reinstatement before a citation is even litigated, and those types of abatement actions are not contemplated in OSHA’s regulations concerning abatement verifications. (29 C.F.R. § 1903.19) The proposed retaliation provisions would also prohibit termination, reduction in pay, reassignment to a less desirable position, or any other adverse action that might dissuade a reasonable employee from reporting an injury or illness. OSHA identified the following as examples of adverse actions that some employers have taken:

• penalizing an employee for failing to report an injury or illness within a specific time period;
• requiring an employee who reported an injury to wear a fluorescent orange vest;
• requiring an employee who reported an injury to undergo drug testing when the employer does not have a reason to suspect drug use;
• disqualifying employees who reported two injuries or illnesses from their current jobs;
• taking pretextual disciplinary action, e.g., only enforcing safety rules against employees who report an injury or selectively enforcing vague safety rules against employees who report any injury

In the March 12, 2012 memorandum, OSHA also found that certain incentive or disincentive programs (such as awarding bonuses to team members for remaining injury free for some period of time) may have the effect of discouraging employees from reporting injuries and may constitute violations of section 11(c) and existing recordkeeping regulations. In particular, OSHA disfavors incentive or disincentive programs that are linked to the number of injuries. The memorandum stated that,

[i]ncentive programs that discourage employees from reporting their injuries are problematic because, under section 11(c), an employer may not “in any manner discriminate” against an employee because the employee exercises a protected right, such as the right to report an injury.

Also, “if the incentive is great enough that its loss dissuades reasonable workers from reporting injuries, the program would result in the employer’s failure to record injuries that it is required to record” under the recordkeeping regulations.

Some of the actions that OSHA considers adverse and therefore considers to be violations of the proposed retaliation provisions are troubling. For instance, it is not uncommon for an employer to have a progressive disciplinary system by which an employee may be fired or demoted if he or she violates a safety rule multiple times, regardless of whether the employees is injured or ill. Also, some employers have policies that require all employees involved in an accident to take a drug test. Moreover, determining whether an employer disciplined an employee for violating a safety rule or for reporting an injury can be difficult. Given the increased risk of receiving a citation, employers may be reluctant to discipline employees for safety violations involving injuries.