12/8/2016: Redefining “Retaliation”: How to Modify Post-Injury Drug-Testing and Reporting Policies as OSHA Expands Its Reach

As seen published on page 18 of the Oct/Nov issue of CLM Workers’ Compensation magazine – http://theclm.wcmagazine.epubxp.com/i/757431-oct-nov-2016

Written by Franklin & Prokopik attorneys Albert B. Randall, Jr. and  Matthew George Kuspa

The Occupational Safety and Health Administration (“OSHA”) has issued new regulations for reporting workplace injuries which are currently scheduled to go into effect on December 1, 2016.  The apparent overall purpose of the new regulations is to promote the prompt, detailed, and accurate reporting of workplace injuries in order to eventually improve the ability to identify and mitigate workplace hazards and prevent workplace injuries and illnesses.  To that end, the regulations modernize injury data collection by requiring employers to report work-related injuries and illnesses electronically.

The new regulations also prohibit employers from retaliating against employees for reporting work-related injuries or illnesses.  A prohibition on retaliation already existed under the Occupational Safety and Health Act (the “Act”), however, OSHA’s new rule also incorporates this existing statutory prohibition on retaliation into an updated regulation.  In doing so, OSHA has expanded its reach to encompass almost any employment practice, policy, or procedure, whether active or passive, that can be construed as deterring employees from reporting injuries and illnesses.

OSHA has also taken on a new role as an enforcer without requiring employees to report violations.  In OSHA’s view, these sweeping changes are justified to ensure the accuracy of employers’ records and reports, and further the overall goals of the Act.  As a practical matter, in the context of workers’ compensation claims, claims professionals will need to understand the effect of the updated legal requirements for employers in order to effectively and efficiently resolve claims.

Modernizing Injury Data Collection

Under previously existing regulations, employers were required to complete an individual OSHA Form 301 “Injury and Illness Incident Report” for each injury.  Prior to the rule change, submissions could be made by paper, and employers were allowed to use an “equivalent form” to Form 301, as long as the form contained the same information as required by Form 301.  (For example, employers could often submit a workers’ compensation “report of injury” or other corresponding form to OSHA in lieu of a Form 301.)  Employers were also required to maintain a Form 300 “Log of Work-Related Injuries and Illnesses,” and submit an annual Form 300A “Summary of Work-Related Injuries and Illnesses.”

Under the new regulations, all information must be electronically submitted to OSHA.  Establishments with 20–249 employees must submit certain injury data from OSHA Form 300A annually by March 2nd of the following year, and employers with 250 or more employers must submit certain injury data from all three forms annually by March 2nd of the following year.  (These requirements will “phase-in” by 2019, with grace periods in 2017 and 2018.)  All establishments, regardless of size, must submit any requested information from any forms upon request by OSHA.

OSHA intends to publicly disclose the information obtained from these forms on its website.  This will allow the public to review information from each establishment and evaluate workplace safety and health at each location, and will doubtless be used for a variety of purposes.  (No personally identifiable information, e.g., employee names, treating physicians, etc., will be collected or posted on the site.)

With regard to workers’ compensation claims, the electronic submission of injury data will undoubtedly result in duplicative paperwork and, accordingly, inaccuracies between records.  In comments to the final rule, OSHA admitted that “because workers’ compensation forms are for a specific purpose and can vary by state,” they may not fit OSHA’s reporting requirements.  Since each establishment will develop its own system for recording workers’ compensation reports of injury in conjunction with  OSHA’s new requirement for electronic reporting, employers and claims professionals will have to work together to ensure the accuracy of the record of injury.

Preventing Retaliation Against Employees

As noted above, the Occupational Safety and Health Act prohibits retaliation against employees who file complaints with OSHA.  The new rule does not change the substantive obligations of employers, but rather gives OSHA a new method of enforcement.  Previously, for OSHA to act, it had to rely on a complaint from an employee prior to bringing suit.  Under the new rules, OSHA may now bring suit against an employer even if the employee did not file a complaint.  OSHA contends that this method of enforcement helps to ensure the accuracy of employer injury and illness logs.

“Retaliation” is any materially “adverse action,” that is, any action which would deter a reasonable employee from reporting a work-related illness or injury.  Retaliation is usually thought of in the context of disciplinary policies.  According to OSHA, improper disciplinary policies are those which discipline (or threaten to discipline) an employee in response to a reportable injury (or a claim for workers’ compensation) when no legitimate workplace safety rule has been violated.  Examples of such discipline can include termination, suspension, reduction in pay, reassignment to a less desirable position, work restrictions, harassment, progressive disciplinary policies, and automatic poor performance evaluations for injuries.

Employers also may not engage in “pretextual disciplinary actions” against employees, including selectively disciplining an employee with a reportable injury for violating a safety rule while not disciplining other employees who violated the same rule and did not report injuries; or selectively disciplining employees for violations of vague work rules to “work carefully” or “maintain situational awareness.”  Employers should review and revise workplace safety rules to require or prohibit specific conduct.

Under the new regulations, employers must inform employees of their right to report work-related injuries and illnesses free from retaliation.  Employers can comply with this requirement by posting OSHA’s free workplace poster from April 2015 (available at http://www.osha.gov/).

In furtherance of this prohibition on retaliation, employers must also develop “reasonable” procedures for reporting work-related injuries or illnesses, eliminate blanket post-injury drug testing policies, and review and revise employee incentive programs.

Developing “Reasonable” Reporting Procedures

Under the new rules, employers are now required to develop reasonable procedures that do not deter or discourage employees from reporting work-related injuries or illnesses.  According to OSHA, examples of unreasonable reporting procedures include reporting policies with several steps or difficult requirements that deter employees from reporting injuries (or which are otherwise “unduly burdensome”), and rigid “prompt-reporting requirements” that result in employee discipline for late reporting.

OSHA appears to take particular issue with prompt-reporting policies, citing examples of injuries and illnesses which develop over time, have latency periods, or do not initially appear to be serious enough to be recordable.  In one case, an individual developed pain due to work-related repetitive motions beginning one week earlier.  The employee received a final warning for failing to timely report an injury.  OSHA found this policy unreasonable because it did not “allow for reporting within a reasonable time after an employee realizes that he or she suffered a work-related injury or illness.”

In order to comply with the new regulations, employers will need to revise reporting procedures to be simple and easy for employees to follow, and to allow employees to report injuries within a “reasonable” period of time after discovering that an injury has actually occurred.  As a recent example, in July 2016, OSHA settled a case that was brought against U.S. Steel for maintaining an immediate reporting policy.  As part of the settlement, the employer adopted a reporting policy that required employees to report injuries “as soon as reasonably possible, but in no event later than leaving the plant or 8 hours after becoming aware of the injury or illness, whichever is earlier.”

Eliminating Blanket Post-Injury Drug-Testing Policies

Under the new regulations, OSHA considers blanket post-injury drug testing to be “a form of adverse action against employees who report injuries or illnesses.”  Going forward, employers should “limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

OSHA contends that drug tests should only be conducted if there is a “reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness.”  As examples, OSHA states that it would likely not be reasonable to drug test in the event of “a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.”

Issues, of course, will arise when the circumstances surrounding the accident are unclear.  For example, in the above OSHA example of “an injury caused by a lack of machine guarding,” would it be “reasonable” to drug test an employee if it was unclear whether the employee was responsible for removing the safety guard?  Did drug use “likely” contribute to the incident?  In the absence of clear guidance on the issue, it’s likely that some employers will choose not to drug test employees in situations where drug use was in fact a contributing factor, but impairment could not be detected.

Employers should also refrain from drug testing “in a way that may be perceived as punitive or embarrassing to the employee,” as this is also likely to deter reporting.  What this means specifically is anyone’s guess, as the act of drug testing alone could be considered by many to be embarrassing.

Reviewing and Revising Employee Incentive Programs

OSHA has also raised concerns about the “retaliatory nature” of employee incentive programs, which “have the potential to discourage reporting of work-related injuries and illnesses without improving workplace safety.”  Examples of inappropriate policies include:

• Periodic prize drawings for employees who did not report injuries,
• rate-based incentives rewarding workers for low rates of injuries, and
• incentive programs based on teams of workers remaining injury-free, leading to peer pressure on employees not to report injuries.

The new regulation does not constitute a blanket ban on employee safety incentive programs, but “programs must be structured in such a way as to encourage safety in the workplace without discouraging the reporting of injuries and illnesses.”  OSHA encourages employers to develop safety incentive programs which “promote worker participation in safety-related activities.”  For example, safety incentive programs may reward employees for correctly following legitimate safety rules, identifying hazards, or participating in investigations of incidents, or other incentives as listed in OSHA’s Voluntary Protection Program guidance materials.

Conclusion

Perhaps in conjunction with OSHA’s new role in enforcing violations, the penalties for violations have recently increased on August 2, 2016.  The current maximum penalty for “Serious,” “Other-Than-Serious,” and “Posting Requirements” violations has now increased to $12,741 per violation.  Failure to Abate violations have increased to a maximum of $12,741 per day beyond the abatement date, and “Willful or Repeated” violations may now garner a maximum penalty of $124,709 per violation.

Given the substantial changes to the definition of “retaliation,” employers should revise their policies to reflect the updated regulations.  Meanwhile, claims professionals need to be cognizant of the updated employer requirements and work with employers to ensure that claims are reported timely and accurately, and that drug-testing and claims reporting are conducted in a lawful manner.

Albert B. Randall, Jr. is the President of Franklin & Prokopik, P.C., and can be reached at arandall@fandpnet.com.  Matthew George Kuspa is an associate with Franklin & Prokopik, P.C.,  and can be reached at mkuspa@fandpnet.com.