A Department of Labor (DOL) memorandum issued on Oct. 19 to all regional administrators of the Occupational Safety and Health Administration (OSHA) clarifies both an employer’s obligation to facilitate injury and illness reporting by employees and also an employer’s obligation not to retaliate for such reporting through disciplinary action, incentive programs or drug testing, even if inadvertent.
The memorandum, called “Interpretation of 1904.35(b)(1)(i) and (iv),” was issued as a follow-up to an OSHA final rule published on May 12 of this year.
As noted, the subject of the memorandum is twofold: to address the process by which employers manage injury-illness reporting, and to elaborate on how discipline, incentives and drug testing can become retaliatory and discourage injury-illness reporting.
On the first issue, the memorandum notes: “An employer’s reporting procedure is reasonable if it is not unduly burdensome and would not deter a reasonable employee from reporting.”
It then gives some examples, including when such reporting is required to be done in person, which would be deemed “burdensome.”
On the second front, the memo notes that the programs mentioned can be retaliatory even if they otherwise serve a legitimate business interest, and it gives three workplace circumstances requiring OSHA to investigate a possible violation:
- The employee reported a work-related injury or illness;
- The employer took adverse action against the employee (that is, action that would deter a reasonable employee from accurately reporting a work-related injury or illness); and
- The employer took the adverse action because the employee reported a work-related injury or illness.
The document then gives a lengthy explanation of how each — disciplinary action, incentive programs and drug testing — can have negative and even retaliatory consequences, which employees would rightfully interpret as discouraging future injury and illness reporting. These sections should be read in detail.
The memorandum does note, however that “section 1904.35(b)(1)(iv) does not impose any new obligations or restrictions on employers. Rather, section 1904.35 gives OSHA another mechanism to address conduct that has always been unlawful—retaliating against employees for reporting work-related injuries or illnesses.”