We recently wrote to alert our clients to the U.S. Occupational Safety and Health Administration’s (OSHA’s) new rule that will require employers, effective January 1, 2015, to report to OSHA within 24 hours all fatalities, amputations and losses of an eye, which reports OSHA intends then to make public. But that is not the only activity at OSHA worth noting.
On August 14, 2014, OSHA published what the Agency calls a “supplemental” Notice of Proposed Rulemaking (NPRM) to amend its proposed “Improved Tracking of Workplace Injuries and Illnesses” regulation. That regulation is more often referred to as the “electronic injury and illness reporting” rule. In the NPRM, OSHA says that it “is considering adding provisions that will make it a violation for an employer to discourage employee reporting [of injuries]”. The amendment clearly was proposed in response to comments that were made by unions at the public hearings on the proposed rule in January. The unions claimed in those comments that employers are discouraging employees from reporting injuries and that the proposed rule would result in employer underreporting of occupational injuries and illnesses.
The amendment to the proposed rule would require employers to inform their employees how to report occupational injuries and illnesses. It also would prohibit employers from establishing “unreasonably burdensome requirements” for such reporting. Given OSHA’s antagonism toward safety incentive programs, as set forth in the March 12, 2012, memorandum from then-Deputy Assistant Secretary Richard Fairfax, it is widely believed that the proposed amendment would be used as another avenue to inspect and cite employers for having such programs. And it seems clear from the proposal that OSHA intends to use the amended rule as a means of going after employers for retaliation under Section 11(c) of the OSHAct, which traditionally requires a complaint by an employee filed for investigation. The proposal would allow such action even absent a complaint.
Employers should watch carefully as OSHA’s proposed Improved Tracking of Workplace Injuries and Illnesses rule, now as amended, winds its way through the rulemaking process. They also should take care to record occupational injuries and illnesses consistent with OSHA’s existing rules, and they should review their safety incentive policies to be sure either that the programs are not objectionable to OSHA under its March 2012 interpretation memorandum or that the risk of applying safety incentive programs that run afoul of that interpretation is being assumed deliberately and with an understanding of the potential consequences. The new, supplemental NPRM invites comments by employers, which must be filed no later than October 14, 2014. The notice lays out 18 questions for employers to answer – though many seem unanswerable.