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Few citations given related to OSHA anti-retaliation provisions

Posted On: Nov. 13, 2017 11:48 AM CST

WASHINGTON — The U.S. Occupational Safety and Health Administration has only issued a handful of citations related to the anti-retaliation provisions of its electronic record-keeping rule, including alleged violations related to employee incentive programs where employees did not receive bonuses because they reported injuries and illnesses, according to a U.S. Department of Labor official.

The official also encouraged employers subject to the rule to file required injury and illness data ahead of a Dec. 1 reporting deadline despite speculation that the agency will again extend the deadline.

In late June, the agency set a new Dec. 1 compliance date for electronic data submission after announcing in mid-May that it would delay compliance. However, it also announced plans to issue a separate proposal to reconsider, revise or remove other provisions of the electronic record-keeping rule, which is currently being reviewed by the White House Office of Management and Budget.

“I would encourage people to submit because that is the law as of right now, and people are submitting, so it’s working,” Ann Rosenthal, associate solicitor for the division of occupational safety and health with the Labor Department’s Office of the Solicitor in Washington, told attendees of the American Bar Association’s annual Labor and Employment Law Conference in Washington on Friday.

The Improve Tracking of Workplace Injuries and Illnesses rule, as the rule is formally known, requires certain employers to electronically submit injury and illness data they already are required to record via their on-site OSHA injury and illness forms. Establishments with 250 or more employees in industries covered by the record-keeping regulation — as well as those with 20-249 employees in high-risk industries such as agriculture, forestry, construction and manufacturing — must submit injury and illness information.

After delays, the rule's anti-retaliation provisions went into effect Dec. 1, 2016, and required employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, specifically barred employers from retaliating against employees, and mandated that employer procedures to report work-related injuries and illnesses must be reasonable and not discourage reporting. But these provisions were controversial — and the basis of some litigation against the rule — because employees could previously file retaliation complaints under Section 11(c) of the Occupational Safety and Health Act and employer representatives were troubled by its establishment of a new, citation-based pathway for employee complaints.

“The anti-retaliation provisions of Section 11(c) are some of the weakest anti-retaliation provisions that exist,” said Randy Rabinowitz, executive director of the OSH Law Project in Washington. “An employee only has 30 days to complain to OSHA. OSHA takes quite some time to complete the investigations. They have to file a suit in federal district court in order for that to be remedied. OSHA historically has not filed a lot of those suits. They have recently improved their track record, but that means they have gone from about a dozen suits a year to 30 to 40 suits a year.”

OSHA has issued only a handful of citations under anti-retaliation provisions since they went into effect last year, with several open investigations, Ms. Rosenthal said.

Some citations were issued against unnamed employers with incentive programs in which employees were penalized for injury and illness reporting, including one employer whose employees who did not report lost-time days received bonuses while those who reported them did not get bonuses. But several employers quickly settled these complaints by agreeing to change their policies and giving employees their incentives, she said.

“The rule can’t really outlaw the incentive programs,” Ms. Rosenthal said. “You can have the policy — you just can’t apply it to penalize the workers who report the injuries.”

While these employee incentive programs are not a per se a violation of the regulation, “OSHA does not like those types of programs, so you’re running a higher risk,” said Shontell Powell, Atlanta-based associate with law firm Ogletree, Deakins, Nash, Smoak & Stewart P.C.

Employer representatives argue that the rule discourages employers from mandating post-accident drug testing, even in situations where such testing may be warranted and with the United States in the midst of an opioid epidemic.

Ms. Rosenthal said she is not aware of a single drug testing case under the federal OSHA plan since the anti-retaliation provisions went into effect.

“We are not seeing a slew of drug testing cases,” she said.

“There was a lot of consternation when this rule first came out,” Ms. Rosenthal continued. “People seemed very concerned that there could never be a drug test, that no kind of incentive program would ever be allowed — that’s not true. OSHA is as aware as everybody else that there is a drug crisis in this country, and to the extent that drugs seem likely to contribute to unsafe behavior, that should be taken into account.”

If employers believe “they have a drug problem in their workplace, they should institute a random drug testing program,” she added.