Anti-Retaliation Provisions of OSHA New Injury and Tracking Rule

Anti-Retaliation Provisions of OSHA New Injury and Tracking Rule

November 2016

As of December 1, 2016, under the new final Rule for Tracking Workplace Injuries issued by the Occupational and Safety Health Administration (OSHA), all employers will be required to put in place anti-retaliation provisions for the reporting of work-related injuries and illnesses.

1. As of 12/1/16, Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation. According to OSHA, this requirement can be met by posting the 2015 OSHA“Job Safety and Health-It’s the Law” poster which can be accessed at https://www.osha.gov/Publications/poster.html

• An employer’s procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting.

• An employer may not retaliate against employees for reporting work-related injuries or illnesses.

Employees must be notified of their right to:

• Have working conditions that do not pose a risk of serious harm;
  • Receive information and training, in a language and vocabulary that the worker understands, about workplace hazards, methods to prevent them, and the OSHA standards that apply to their workplace.
  • Review records of work-related injuries and illnesses;
  • File a complaint asking OSHA to inspect their workplace if they believe there is a serious hazard or that their employer is not following OSHA’s rules.  OSHA will keep all identities confidential.

According to OSHA, an employer’s procedure for reporting work-related injuries and illnesses must permit for injuries and illnesses that build up over time, have latency periods (i.e., time between exposure and appearance of symptoms), or do not initially appear serious enough to the employee to require reporting to the employer.  A procedure that requires immediate reporting without accounting for these circumstances would not be reasonable.

According to OSHA, an employer’s procedure for reporting cannot make reporting overly difficult or complicated so as to discourage a reasonable employee from reporting an injury or illness.  For example, requiring an employee to file a report with multiple levels of management.

OSHA addresses post-accident drug testing as a possible form of retaliation for reporting workplace injuries. OSHA does not prohibit employers from conducting post-incident testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness. However, if there is no indication of employee impairment or employee drug use could not have contributed to the injury or illness, then post-incident drug testing could constitute prohibited retaliation.