OSHA Memorandum


OSHA Memorandum Explaining Recent Injury Reporting Rule Changes


Recently, OSHA provided a memorandum to clarify interpretations of a May 12, 2016 final OSHA rule change regarding the reporting of work-related injuries and illnesses. To see the full memo go to: https://osha.gov/recordkeeping/finalrule/interp_recordkeeping_101816.html


Key clarifications include: “OSHA must show that the employer either lacked a procedure for reporting work-related injuries or illnesses, or that the employer had a procedure that was unreasonable… An employer’s reporting procedure is reasonable if it is not unduly burdensome and would not deter a reasonable employee from reporting.”


As to discipline, “Section 1904.35(b)(1)(iv) does not prohibit employers from disciplining employees who violate legitimate safety rules or reasonable reporting procedures. Rather, it prohibits disciplining employees simply because they report a work-related injury or illness.”


“when OSHA is evaluating whether the employer violated section 1904.35(b)(1)(iv), the central inquiry is whether the employer treated other employees who violated the same rule in the same way—i.e., took the same adverse action—regardless of whether those employees reported a work-related injury or illness, or whether the employer only or primarily used the rule against employees who reported a work-related injury or illness.”


Drug & Alcohol Testing: “Section 1904.35(b)(1)(iv) does not prohibit employers from drug testing employees who report work-related injuries or illnesses so long as they have an objectively reasonable basis for testing, and the rule does not apply to drug testing employees for reasons other than injury-reporting. Moreover, OSHA will not issue citations under section 1904.35(b)(1)(iv) for drug testing conducted under a state workers’ compensation law or other state or federal law. Drug testing under state or federal law does not violate section 1904.35(b)(1)(iv).” (emphasis added) Illinois’ Workers’ Compensation Act was amended in 2011 adding to Section 11 denial of benefits to injured workers where intoxication is the proximate cause of the injury or the employee was so intoxicated that the intoxication constituted a departure from employment. As evidence of intoxication, an employer may test for alcohol and other intoxicating compounds following specific procedures for sample collection and testing provided in the statute as well as rules adopted by the Workers’ Compensation Commission.


“When evaluating whether an employer had a reasonable basis for drug testing an employee who reported a work-related injury or illness, the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.” “The general principle here is that drug testing may not be used by the employer as a form of discipline against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances.”


Incentives: “Section 1904.35(b)(1)(iv) does not prohibit safety incentive programs. Rather, it prohibits taking adverse action against employees simply because they report work-related injuries or illness. Withholding a benefit—such as a cash prize drawing or other substantial award—simply because of a reported injury or illness would likely violate section 1904.35(b)(1)(iv) regardless of whether such an adverse action is taken pursuant to an incentive program.”


“However, conditioning a benefit on compliance with legitimate safety rules or participation in safety-related activities would not violate section 1904.35(b)(1)(iv).”


Source:  Illinois Chamber of Commerce Employment Law Council 11/4/2016

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