On October 19, 2016, the Department of Labor released a guidance memorandum regarding employers’ policies on reporting workplace injuries and illnesses, and further outlined the prohibitions on retaliating for such reporting.
In May 2016, OSHA published a final rule requiring employers to have in place reasonable procedures for reporting workplace injuries or illnesses and prohibiting employers from retaliating against employees who make such reports. The recent guidance explains these requirements and also provides some examples. With regard to employers’ procedures for reporting injuries, the DOL emphasized the procedures must be reasonable for employees. More specifically, the procedures cannot be unduly burdensome nor can they deter a reasonable employee from reporting. In this regard, common sense rules the day. For example, a policy requiring an employee to report an injury before he or she knows that he or she has an injury is not reasonable, nor is one that requires an employee to report when he or she is incapacitated. While these examples are fairly obvious, one can expect the government to take a hard look at more questionable cases.
The DOL guidance also addresses retaliation, specifically in the context of disciplinary policies, post-accident policies and employee incentive programs. Reiterating the well-known tripartite test for retaliation (reporting a work related injury, adverse employment action, causation), the DOL advised employers to look to see how it treated other similarly situated workers who did not make an injury report. Regarding drug testing, the guidance states that the central inquiry will be whether the employer had a reasonable basis for suspecting that drug use could have contributed to the injury and noted that an employer may drug test as a means to evaluate the root causes of an accident. Again, the DOL sets forth examples that, frankly, are too basic to be of much value. Even so, the guidance is helpful reading for those employers that routinely deal with workplace injuries.