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OSHA’S New Anti-Retaliation Rule: Effect on Safety Incentive Programs

By Gabrielle Sigel and Andi Kenney

On May 12, 2016, the U.S. Occupational Safety and Health Administration ("OSHA") issued a final rule addressing employers' workplace injury and illness reporting and recording obligations. 81 Fed. Reg. 29624-94. One portion of the new rule addresses retaliation against employees who report a work-related injury or illness (collectively, "injury") to an employer. Specifically, new § 1904.35(b)(1)(iv) provides: "You must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness." 29 CFR § 1904.35(b)(1)(iv). OSHA also added another new rule:  An employer “must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” 29 CFR § 1904.35(b)(1)(i).

The new rule, particularly § (b)(1)(iv), was challenged in federal court, with plaintiffs seeking a nationwide preliminary injunction prohibiting the rule's enforcement. TEXO ABC/AGC, Inc. v. Perez, No. 3:16-CV-1998 (N.D. Tex. July 8, 2016). On November 28, 2016, the court denied plaintiffs' request for an immediate injunction, but said that its decision on the preliminary injunction does not reflect its decision on the merits of plaintiffs' legal challenges to the rule. Without the preliminary injunction, OSHA may begin enforcing the new rule as of December 1, 2016.

OSHA stated that, through new rule § 1904.35(b)(1)(iv), it was creating an "enhanced enforcement tool" to prevent retaliation for injury reporting. 29 Fed. Reg. 29671. Now, rather than having to wait for an employee complaint before filing a federal court lawsuit, as it had pursuant to § 11(c) of the OSHA Act, an OSHA inspector can issue an administrative citation and seek penalties, like it does for other alleged rule violations, without necessarily requiring an employee complaint or first going to federal court.

OSHA stated that this new enforcement tool was needed to address "the retaliatory nature of the employee incentive programs at some workplaces…." 29 Fed. Reg. 29673. OSHA cited studies and examples of injury rate-based incentive programs, "which reward workers for achieving low rates of reported injury and illnesses" and, purportedly, cause underreporting of work-related cases, including due to peer pressure. Id. OSHA concluded that, although the "specific rules and details of implementation of any given program must be considered" when evaluating whether the new rule has been violated, "it is a violation for any employer to use an incentive program to take adverse action, including denying a benefit, because an employee reports a work-related injury or illness, such as disqualifying the employee for a monetary bonus…." 81 Fed. Reg. 29674. OSHA also explained that if the incentive program "makes a reward contingent upon… whether employees correctly follow legitimate safety rules…, the program would not violate this provision." Id.

OSHA tried to clarify how it would use § 1904.35(b)(1)(iv) as an "enhanced enforcement tool." On October 19, 2016, it issued a memorandum to all OSHA Regional Administrators, interpreting § 1904.35(b)(1)(iv) ("the Interpretive Memo"). In the Interpretive Memo, OSHA stated that the rule "does not prohibit safety incentive programs. Rather, it prohibits taking adverse action against employees simply because they report work-related injuries or illness." Interpretive Memo, § II.C. OSHA gave an example of an employer-sponsored raffle awarded only in a month in which no employees report lost workday cases. Even if the reporting employee only would have had a chance to win the raffle, by withholding the raffle in a month when an employee reported a lost workday case, OSHA believes the employer is retaliating against that reporting employee. Id.

OSHA specified, however, that it would not issue a citation for violation of § 1904.35(b)(1)(iv) unless OSHA has "reasonable cause to believe that a violation occurred—in other words, that an employer retaliated against an employee for reporting." Interpretive Memo, § II. Moreover, OSHA has the burden of proof to show that an employee was discriminated against.

Next Steps for An Employer

An employer should evaluate any safety-related incentive programs based on three criteria: (1) what benefit is conveyed or withheld; (2) who receives the benefit (or could suffer from a withheld benefit); and (3) what triggers the benefit being conveyed or withheld. If the benefit is withheld based on any employee's report of a workplace injury or illness, the employer could be at risk for an OSHA citation under §§ 1904.35(b)(1)(i) and/or (b)(1)(iv).  The employer also should evaluate whether, even if a reporting employee does not qualify for the benefit, the employee could suffer consequences, including negative reactions by supervisors, if the employee reports an injury. On the other hand, a very small benefit garnered through an incentive program may not be seen as reasonable discrimination.

OSHA's issuance of a citation should depend on factual and legal determinations, including finding that an employee who reported an injury would have qualified for the incentive program's benefit and that the denial of the benefit "could well dissuade" a reasonable employee from reporting the injury. Interpretive Memo, fn. 6. However, any safety incentive program based on reported injuries may well be viewed skeptically by an OSHA inspector and may lead to a more in-depth evaluation of the employers' entire recordkeeping program.

To avoid a potential for liability, an employer should consider ceasing any incentive program that is based on injury reporting. An employer may continue to track reported injuries or have goals for limited or no reported injuries, but the employer will remain at risk for an OSHA citation and penalties if any significant benefit or withdrawal of benefit is attached to the fact or number of injuries reported. OSHA continues to support safety-based incentive programs based on factors other than reported injuries. Programs tracking other metrics, such as whether employees comply with safety rules (e.g., consistently wearing eye protection), attend training, or other leading indicators of safety compliance or positive safety performance, would not subject an employer to scrutiny under OSHA's new rule.