Employers continue to deal with federal intrusions in workers’ compensation: the Medicare Secondary Payer Statute and now new rules being considered by OSHA. On November 8, 2013, OSHA published a notice of proposed rule-making to amend the agency’s regulations on reporting injuries and illnesses.
OSHA is concerned that injury reporting may be inaccurate because employers may have policies that discourage employees from reporting injuries. Therefore, OSHA is considering three provisions:
- A requirement that employers inform their employees of their right to report injuries and illnesses free from discrimination or retaliation;
- A provision requiring that any injury and illness reporting requirements established by the employer be reasonable and not unduly burdensome; and,
- A prohibition against disciplining employees for reporting injuries or illnesses.
OSHA is asking the following questions:
- Do you or does your employer currently inform employees of their right to report injuries and illnesses? If so, please describe how and when this information is provided.
- Are there any difficulties or barriers an employer might face in trying to provide such information to its employees? If so, please describe them.
- How might an employer best provide this information: orally to the employee, through a written notice, posting or in some other manner?
Adverse actions mentioned by participants in public meetings with OSHA include automatically disciplining those who seek medical attention and requiring an employee who reported an injury to undergo drug testing where there was no reason to suspect drug use.
There are already rules prohibiting discrimination against an employee for reporting a work-related injury or illness, but OSHA is not satisfied with existing rules. It feels additional explicitness is needed because stakeholders were concerned that new requirements to publicize record-keeping data might provide employers new motivation for disciplining employees for reporting.
The comment period for the proposed rule runs on October 14, 2014. Thanks to National Workers’ Compensation Defense Network member, Mike Fish, Esq. of Fish, Nelson and Holden in Alabama for bringing this development to our attention.
