Under the Occupational Safety and
Health Act (OSH Act) of 1970, US
employers are required to keep
a record of serious work-related
injuries and illnesses that occur in
1 In 2013, OSHA announced that it planned to amend its
record-keeping regulation by requiring employers to submit their injury
and illness records electronically.
the preamble of the proposed rule,
OSHA explained that it intended to
post the recordkeeping data it collected from employers on its website
in an effort to “name and shame”
employers that violate its standards.
Many participants expressed concerns that the proposed rule “might
create a motivation for employers to
under-report injuries and illnesses.”
To counter those concerns and lead
to more accurate reporting, OSHA issued a supplemental proposal in 2014
to prohibit employers from retaliating against employees for reporting
workplace injuries and illnesses.
The final rule and its inherent
anti-retaliation mandate have four
components that employers should
know well to avoid an OSHA violation. First, the final rule requires
employers “in certain industries to
electronically submit to OSHA injury
and illness data that employers are
already required to keep under existing OSHA regulations.”
6 While the
reporting data will be posted on “a
publicly accessible website,” the agency agreed not to post any identifying
information about the employers
submitting the information.
it remains to be seen how the new
electronic system will work and how
effective it will be.
Second, the final rule implemented
anti-retaliation provisions that: ( 1)
require employers to inform employ-
ees of their right to report work-re-
lated injuries and illnesses free from
retaliation; ( 2) clarify the existing
and implicit requirement that an
employer’s procedure for reporting
work-related injuries and illnesses be
reasonable and not deter or discour-
age employees from reporting; and
( 3) incorporate the existing statutory
prohibition on retaliating against
employees for reporting work-
related injuries and illnesses.
Section 11(c) of the OSH Act already
prohibits employers from retaliating
against an employee for reporting a
workplace injury or illness, the final
rule allows it to cite an employer for
retaliation even absent an employee
complaint and lowers OSHA’s burden
of proof as to whether OSHA has rea-
sonable cause to believe a violation
9 Previously, OSHA was not
allowed to act under Section 11(c)
unless an employee filed a complaint
with OSHA within 30 days of the
10 This is a game changer.
Third, under the final rule, and as
a component of OSHA’s overhaul of
the anti-retaliation rule, employers
are prohibited from using drug testing
or the threat of drug testing as a form
of retaliation; however, they are not
prohibited from conducting post-
incident drug testing of employees
who report a workplace injury or ill-
ness or if required under some other
federal or state laws or by a workers’
pre-employment and random drug
testing is not affected by the final rule.
Instead, the final rule seeks to prevent
employers from using drug testing
as a form of discipline or retaliation
against employees who report an
injury or illness (i.e., drug-testing an
employee as a result of a bee sting).
Finally, OSHA has expressed
concern about the chilling effect of
certain types of safety incentive pro-
grams. While incentive programs can
help drive an effective safety program,
OSHA has cautioned that if safety
incentive programs are not config-
ured carefully, they have the potential
to discourage reporting of work-
related injuries and illnesses. OSHA’s
primary example is a safety incentive
program that rewards the absence
of injury or withholds rewards from
an individual or group when some-
one reports a recordable injury or
achieves a certain injury rate. The
key is whether the reward or benefit
to the employee is based on leading
indicators, such as complying with
safety rules and completing training.
These values counteract lagging indi-
cators, such as injury rates. Lagging
indicator programs are likely to be
found unacceptable because, again,
they focus on recordable injuries and
single out an individual or group.
Jennifer Jaskolka is assistant general counsel for Xcel Energy, a Fortune 500 utility provider that
provides customers with electric and natural gas service. She serves as the primary lawyer for
corporate safety and her responsibilities include litigation, OSHA, and compliance.
Jim Goh is the managing partner of the Denver office of Constangy, Brooks, Smith & Prophete.
He’s represented management in all aspects of employment counseling and litigation for more
than 25 years, specializing in employment discrimination and retaliation, whistle-blowing, wage/
hour compliance, occupational safety and health (OSHA), employment-related torts, and more.
LaLonnie Gray is an attorney in the Denver office of Constangy, Brooks, Smith & Prophete — a
boutique firm for labor and employment law in the United States. She helps employers navigate
the legal and regulatory environments of the changing workplace.
58 ASSOCIATION OF CORPORATE COUNSEL
COMPLYING WITH OSHA’S “NE W” ANTI-RETALIATION PROVISIONS