The Occupational Safety and Health Administration ("OSHA") has rolled out a new rule, most of which becomes effective January 1, 2017, with several components related to reporting and recording workplace injuries and illnesses. These components include:
- reasonable reporting procedures and requirements;
- anti-retaliation measures and policies; and
- electronic submission of data relating to recordable injuries and illnesses.
The new rule has teeth, too. Now, if OSHA believes an employer has taken adverse action against an employee based upon the employee's report of a work-related injury or illness, OSHA will have authority to issue citations against the employer.
This TIP addresses the rule's requirement for having reasonable reporting procedures. Our firm's Labor & Employment Team will follow this TIP with others, discussing the remaining key points under the new rule.
OSHA's existing rules already require employers to have a policy or procedure for employees to promptly report work-related injuries or illnesses (see 29 CFR 1904.35(b)(1)). The new rule emphasizes that the reporting procedures used must be "reasonable," which would seem to be an invitation for OSHA to define what is considered "reasonable" in this context. The rule does not, however, define or explain what is considered a "reasonable" reporting procedure, other than that employers must ensure that nothing in their reporting procedures would deter or discourage a reasonable employee from coming forwarding and reporting a workplace injury or illness.
"Guidance" separately published by OSHA indicates that the following types of policies may deter or discourage reporting:
- A policy requiring the immediate reporting of an injury or illness, regardless of the circumstances. OSHA points out that a good policy should recognize that some conditions develop over time, have a latency period (i.e., symptoms may not appear immediately), or otherwise might not initially seem to be serious enough to report, and that in some situations employees are physically unable to make an immediate report.
- A policy that makes reporting unnecessarily complicated or unduly burdensome. For example, OSHA says there may be an issue if the employee is required to travel a significant distance to make the report, the employee is required to make the report in person (and is unable to do so), or the employee must report the same injury/illness to multiple levels of management.
TIP: For the New Year, carefully review handbooks, policies, and safety programs for clear and reasonable reporting procedures related to workplace injuries and illness. Look for, and eliminate, any aspects of those procedures that might deter or discourage employees from making reports.