OSHA Issues Interpretation on Injury Reporting and Anti-Retaliation Provisions

Earlier this year, the Occupational Safety and Health Administration (OSHA) published a final rule that added provisions to 29 C.F.R. 1904.35 addressing reasonable procedures for reporting work-related injuries and prohibitions against retaliating against employees for reporting work-related injuries or illnesses.

On Wednesday, October 19, OSHA quietly published guidance titled, “Interpretation of 1904.35(b)(1)(i) and (iv).” The guidance purports to explain the new provisions of its 2016 final rule in more detail.

The guidance explains that to establish a violation of 29 C.F.R. 1904.35, “OSHA must show that the employer either lacked a procedure for reporting work-related injuries or illnesses, or that the employer had a procedure that was unreasonable.” The guidance provides examples and emphasizes that employers’ interests in prompt and accurate reporting must not discourage employees from reporting their injuries and illnesses. OSHA states that a reasonable policy would require employees to report “as soon as practicable after realizing they have the kind of injury or illness they are required to report to the employer, such as the same or next business day when possible.” OSHA further states that it would not be reasonable to discipline employees for failing to report immediately when employees are incapacitated because of the injury or illness.

The guidance then turns to the issue of retaliation against employees for reporting work-related injuries or illnesses and details the agency’s concerns with disciplinary policies, post-accident drug testing, and employee incentive programs.

The guidance states that its rule “does not apply to drug testing employees for reasons other than injury-reporting,” and that OSHA will not issue citations under its new subsection “for drug testing conducted under a state workers’ compensation law or other state or federal law.” In other words, testing under these state or federal (e.g., Department of Transportation) laws is an objectively reasonable basis for testing, which OSHA will not challenge.

On a murkier note, comments to the final rule released earlier this year stated, “[D]rug testing policies 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 now provides additional examples of conduct that could contribute to an accident and emphasizes that drug-testing an employee whose injury could not have been caused by drug use would violate the new subsection of the final rule; for example, an employee who suffered a repetitive-strain injury.

Regarding drug tests that can accurately identify impairment, OSHA now states: “OSHA will only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available. Therefore, at this time, OSHA will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.”

OSHA has agreed to delay enforcement of these rule changes until December 1, 2016. MSEC will continue to monitor new developments as they occur.