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Employer representatives are troubled by anti-retaliation provisions in the U.S. Occupational Safety and Health Administration's electronic record-keeping rule that establish a new, citation-based pathway for employee complaints.
The Improve Tracking of Workplace Injuries and Illnesses rule, which goes into effect Jan. 1, 2017, 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 2016 injury and illness information by July 1, 2017. 2017 data must be submitted by July 1, 2018.
However, the rule's anti-retaliation provisions go into effect in just three months. The provisions, effective Aug. 10, require employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, specifically bar employers from retaliating against employees, and mandate that employer procedures to report work-related injuries and illnesses must be reasonable and not discourage reporting.
“It simplifies OSHA's ability to take action regarding claims of whistleblowing,” said Daniel Davis, special labor and employment counsel at law firm Proskauer Rose L.L.P. in Washington. “It gives OSHA another avenue, and I fully expect OSHA will use that avenue. Employers need to be aware that OSHA has additional ways to investigate and evaluate and now write citations for what it perceives to be retaliatory activity.”
The anti-retaliation provisions were born from the agency's desire to ensure that injury and illness data is as accurate and complete as possible, said David Michaels, Washington-based assistant secretary of labor for occupational safety and health.
However, legal experts questioned both the need and legal authority for the anti-retaliation provisions because employees already can file retaliation complaints under Section 11(c) of the Occupational Safety and Health Act.
“This is really a backdoor way, to me at least, to get around 11(c) and provide a whole new way for employees to raise that cause of action,” said Melissa Bailey, a Washington-based shareholder at Ogletree Deakins Nash Smoak & Stewart P.C. “I'm not sure how OSHA justifies under its record-keeping authority some alternate path to the remedy. Congress should be doing that, not OSHA.”
But Mr. Michaels said the anti-retaliation provisions are critical to protect workers.
“If a worker is retaliated against for reporting an injury, it's not simply an 11(c) violation, for which we have to take an employer to court,” he said. “Now, it's a violation of the record-keeping regulation. We can issue a citation, and we can get abatement. That will really protect workers and their voice in ways that we really haven't been able to do before.”
Employers that consistently apply their disciplinary policy for employees who fail to follow health and safety rules would not run into trouble with OSHA, but what is unacceptable is if the policy is applied only if a worker is injured, Mr. Michaels said. OSHA has seen situations where employees were fired on grounds they violated safety rules when they were actually fired for reporting injuries or illnesses, he said.
“That's something that we see all the time, and it's of great concern to us, and we're hoping to eradicate that,” Mr. Michaels said.
“It signifies that maybe OSHA is planning to pursue this whistleblower agenda against employers based on these reporting requirements, and it seems like overkill to me,” said Jason Mills, a Los Angeles-based partner at Morgan, Lewis & Bockius L.L.P. “I'm frustrated with the fact that that's what they viewed to be the fix here, when the bigger problem was they were placing this burden on employers. It doesn't take much for an employee to say he or she was discouraged from reporting a workplace injury, and it's going to put this burden on employers where they're trying to defend themselves against this all the time.”
Under the provisions, an OSHA compliance safety and health officer will investigate and determine whether the employer violated the anti-retaliation provisions. If the complaint is validated, OSHA could issue a citation and order remedies such as purging the employee's personnel file, reinstatement and back pay.
“It is a new concept, and I think it's going to be very difficult for OSHA to enforce, and it's going to be really difficult for employers to swallow if they start citing them for this,” Mr. Mills said.
Another objection is that the anti-retaliation provisions never were part of the original proposed rulemaking, which could constitute a conflict or violation of the Administrative Procedures Act, said Amanda Wood, director of labor and employment policy at the National Association of Manufacturers in Washington.
The association is exploring its legal and legislative options, she said.
But given the August effective date, employers are going to have to move fast.
“I definitely would ... review your reporting policies and procedures, update them, distribute them and then do any manager training that you feel is necessary to ensure that there is not going to be retaliation,” said Alta Ray, a Washington-based associate at Mintz Levin Cohn Ferris Glovsky & Popeo P.C.