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OSHA Reopens Comment Period to "Improve Tracking of Workplace Injuries and Illnesses"

On August 14, 2014, the Occupational Safety and Health Administration (OSHA) published a Supplemental Notice of Proposed Rulemaking, seeking comment on whether to amend a previously published proposed rule from November 2013 to add three additional provisions. The November 2013 Proposed Rulemaking (which was addressed in more detail in the February 2014 edition of the Wimberly Lawson Briefly, click HERE) would require certain covered employers to submit information electronically from their records maintained under OSHA's existing regulations for recording and reporting occupational injuries and illnesses; OSHA would then post information from these reports on its website making the information available to the general public.

Following publication of the 2013 Notice, OSHA held a public meeting in January 2014 during which employers and interest groups expressed many concerns concerning the proposal. Opponents of the proposed rule expressed concern that the data could be misinterpreted by the public and/or be misleading regarding an employer's safety efforts. OSHA reports that concerns were also raised that the proposed rule might discourage employers from reporting injuries and illnesses and/or that the increased visibility of establishment injury and illness data could lead to an increase in employer practices which, in effect, discourage employees from reporting recordable injuries and illnesses.

Due to these concerns, OSHA's Supplemental Notice seeks comment on whether to amend the proposed rule to add provisions to: (1) require that employers inform their employees of their right to report injuries and illnesses; (2) require that any injury and illness reporting requirement established by the employer be reasonable and not unduly burdensome; and (3) prohibit employers from taking adverse action against employees for reporting injuries and illnesses. 79 Fed. Reg. 47605-47610 (Aug. 14, 2014).

OSHA recognizes that much of the conduct prohibited under the proposed additional provisions would likely already be proscribed by Section 11(c) of the OSH Act, which prohibits discharge or discrimination against any employee for exercising any right under the Act and allows an employee to file a complaint with OSHA for alleged employer violations. 29 U.S.C. § 660(c)(1). OSHA contends the new proposed provision would provide OSHA "with additional enforcement tools to promote the accuracy and integrity of the injury and illness records employers are required to keep under Part 1904." 79 Fed. Reg. 47607. OSHA notes that under Section 11(c), action may not be instituted against an employer unless an employee files a complaint. However, "under the additions to the proposed rule under consideration, OSHA would be able to cite an employer for taking adverse action against an employee for reporting an injury or illness, even if the employee did not file a complaint."

With respect to the first proposal (i.e., that employers inform employees of their right to report injuries and illnesses), OSHA notes that under 29 C.F.R. 1904.35(a), employers are "already required to inform each employee about how he or she is to report an injury or illness to the employer." However, this additional requirement would serve to inform employees of "their right to report injuries and illnesses" which OSHA contends could be done through additional annual training, posting, or part of an employee handbook.

The second proposed addition would enhance the requirements under 29 C.F.R. 1904.35(a)(1) and (b)(1) regarding the establishment of procedures for reporting injuries and illnesses so that such procedures "be reasonable and not unduly burdensome." However, OSHA believes that while "onerous and unreasonable reporting requirements are already, in effect, prohibited by the regulation..." this provision would add additional text to communicate that point more clearly. As an example, OSHA noted a procedure requiring an "in-person report rather than telephonic reporting of an injury or illness at a location distant from the employee's typical workplace" would likely not meet the standard.

With respect to prohibiting employers from disciplining employees for reporting injuries and illnesses, OSHA noted if employers discipline or take adverse action against employees for reporting injuries or illnesses, this additional proposal may discourage employees from such reporting. In the Supplemental Notice, and as support for the additional proposals, OSHA noted several adverse actions mentioned by participants in the comment period in January 2014 included requiring employees who reported an injury to wear florescent orange vests; requiring an employee who reported an injury to undergo drug testing where there was no reason to suspect drug use; automatically disciplining those who seek medical attention and enrolling employees who report an injury in an "accident repeater program" which included counseling on workplace safety.

Clearly, such regulations could have a significant impact on employers through increased compliance obligations and potentially calling into question policies that include disciplinary consequences when employees fail to follow safety procedures in the workplace. Most employers would agree that when an employee violates a safety rule, the employer should have disciplinary recourse available, whether an injury results or not. In addition, certain proposed provisions would seem to conflict with many state drug-testing laws, such as Tennessee's, which allow for post-accident alcohol/drug testing, as well as workers' compensation laws, which limit or restrict an employee's ability to recover benefits for work-related injuries if a positive drug or alcohol test is confirmed.

OSHA has extended the comment period based on the Supplemental Notice and interested parties have until October 14, 2014 to submit comments which may be submitted at www.regulations.gov


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