On May 11, 2016, the Occupational Health and Safety Administration (“OSHA”) issued the final version of amendments to its Injury and Illness Recordkeeping Rule. While the principal function of the new rule is to require certain employers to begin electronically filing injury and illness reports to OSHA in 2017 (records which will then be published to the public), employers should also take note that OSHA has quietly adopted new anti-retaliation provisions in its regulations that could lead to more investigations and citations.

The Occupational Health and Safety Act has always contained whistleblower protections. Under Section 11(c) of the Act, it is unlawful to retaliate or otherwise discriminate against an employee who has engaged in activity protected by the Act. These “protected activities” could include filing a safety complaint with OSHA, raising a safety concern with the employer or union, filing safety-related grievances, participating in or requesting an OSHA inspection, or testifying against the employer. Enforcement of these statutory whistleblower protections, however, is somewhat tedious when compared with other employment laws. Employees who feel wronged must file their whistleblower complaint with OSHA within 30 days. OSHA then conducts an investigation, and if it determines that Section 11(c) is violated, then the Department of Labor may file a lawsuit in federal court. The Act does not provide for an employee to file a lawsuit on his or her own.

The new rule updates requirements on how employees must be involved in the recordkeeping system. Employers must establish a “reasonable procedure” for employees to report work-related injuries or illnesses promptly and accurately. A procedure is not reasonable if it would “deter or discourage a reasonable employee” from promptly reporting an injury. Employers must also inform each employee of their right to report and that employers are prohibited from retaliating or otherwise discriminating against employees for reporting.

Most significantly, however, under the new rule, OSHA is empowered for the first time to take it upon itself to investigate whether employers are discriminating or retaliating against employees who report a work-related injury or illness – without waiting for a complaint to be filed under Section 11(c). The new rule also gives OSHA broad authority to issue citations and order remedies for a finding of violation of the retaliation provisions. These remedies could include fines, orders to revise employer policies, and/or orders to reinstate employees with back pay and other monetary relief. Employers should take special note that previously-static OSHA fines and penalties increase significantly (as a “catch up”) on August 1, 2016, and will thereafter continue to adjust for inflation.

Finally, it should be noted that the previous Section 11(c) employee complaint process still remains as part of the Act. The basic function of the new rule, then, is to duplicate those protections to give OSHA power to act in addressing practices it believes to be retaliatory without the need to be triggered by an employee complaint. Employers are now, in essence, exposed to investigation and sanction for suspected retaliation from two separate pathways. Compounding this disturbing redundancy is that the new rule does not spell out how the new investigations will work, nor does it give guidance on what a “reasonable” reporting procedure for employees should look like. Only time will tell how OSHA will interpret and enforce the new rule.

The new anti-retaliation provisions took effect on August 16, 2016. OSHA’s newfound investigatory authority, combined with the uncertainty of the new investigation process and increased penalties for violation, could soon create a minefield of compliance issues for employers and signal a raft of new complaints and investigations. For the time being, employers should review their workplace injury and illness reporting policies and procedures to ensure that they comply with the new rule and that they are made clear to all employees. In doing so, employers should actively encourage employees to report injuries and illnesses and stress that they will not be retaliated against for doing so. An ounce of careful prevention should go a long way to prevent a pound of expensive cure at the hands of OSHA.

Mark focuses his practice in the area of labor and employment law. He regularly defends employers – both public and private sector – in employment-related lawsuits in the state courts of West Virginia and the federal District Court for the Southern District of West Virginia, as well as charges filed before the West Virginia Human Rights Commission, the West Virginia Public Employees Grievance Board, and the federal Equal Employment Opportunity Commission.
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