On October 19, 2016, OSHA published a memorandum interpreting the new anti-retaliation provisions in Section 1904.35, as part of the new final rule – “Improve Tracking of Workplace of Injuries and Illnesses.”
In conjunction with the memorandum, OSHA also provided example scenarios of incentive, disciplinary, and drug-testing programs and how the new rule may be interpreted to those scenarios on its website.
Revised section 1904.35 requires employers to establish reasonable procedures for reporting a work-related injury or illness and prohibits employers from retaliating or taking adverse action against employees for reporting work-related injuries or illnesses. The new guidance issued last week explains the agency’s position in more detail and in some instances seems to be a reversal of earlier stated positions. OSHA states specifically, “the rule does not ban appropriate disciplinary, incentive, or drug-testing programs” and then outlines what appropriate programs would be according to OSHA.
According to OSHA, “the rule does not prohibit disciplinary programs. However, employers must not use disciplinary action, or the threat of disciplinary action, to retaliate against an employee for reporting an injury or illness.”
OSHA provided the examples below of instances of disciplinary programs that would violate section 1904.35(b)(1)(iv):
- Automatically suspending an employee who reports a work-related injury.
- Assigning employees points that have negative employment consequences for reporting a work-related injury.
- Rigid prompt reporting requirements, such as disciplining for not immediately reporting a work-related injury in cases where the employee has not yet had time to identify a work-related injury has occurred.
One of the examples provided by OSHA was an employer disciplinary program that would discipline an employee who is injured when he is stung by a bee for violating the company’s rule to “maintain situational awareness,” and the employer only disciplines for violations of this safety rule when employees are injured. OSHA would consider this a violation of section 1904.35(b)(1)(iv).
On the other hand, an employer who disciplines an employee for by-passing a guard, contrary to the employer’s safety policies, even when that employee is injured would not be a violation of section 1904.35(b)(1)(iv).
More information on the recently provided guidance can be found on the ISRI Website on the OSHA Alliance webpage under Regulatory Updates.
For more information, contact Terry Cirone.
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