Fed-OSHA rolls out clarified rules for Reporting of Injuries and Illnesses
On May 12, 2016 OSHA published a final rule that, among other things, amended 29 C.F.R. 1904.35 making explicit the longstanding requirement for employers to have a reasonable procedure for employees to report work-related injuries and illnesses. Aspects of this new rule will begin being enforced in 2017. One of the primary goals behind these necessary clarifications was to improve the completeness and accuracy of injury and illness data collected by employers and reported to OSHA. When workers are discouraged (directly or indirectly) from reporting occupational injuries and illnesses, the information gathered and reported is incomplete and inaccurate. The data is not of much use, if it’s not accurate.
Two things caught my attention, and I was happy to see the clarification.
- One is related to reporting an injury/illness “in a reasonably prompt manner”. For the reporting procedure to be “reasonable”, it must not be unduly burdensome and would not deter a reasonable employee from reporting. It must allow for reporting of work-related injuries and illnesses within a reasonable time frame after the employee has realized that he or she has suffered a recordable work-related injury or illness and in a reasonable manner. Considerations should include accounting for work-related injuries and illnesses that build up over time, or have a latency period. This can be an issue with common musculoskeletal disorders such as overuse syndromes like tendonitis and bursitis, strains and sprains. These are very common soft tissue disorders and are often caused by forceful exertions in combination with repetitive tasks. This often occurs over time – could be days, weeks, or longer. Once realized, and reported, some employees are disciplined for “late reporting”, but it is typical for these disorders to come on over a period of time. Illnesses that occur due to poor design, overexertion and poor ergonomics may not be recognized immediately as work-related or may not be recognized immediately at all!
- The second one is related to the use of incentive programs. Incentive programs should encourage safe work practices and promote worker participation in safety-related activities. This is not news to anyone, and the rule clearly does not prohibit incentive programs. Employers MUST NOT, however, use incentive programs in a way that penalizes workers for reporting work-related injuries or illnesses. This would include denying a benefit (such as a cash prize for the department or pizza party for the group) to someone who reports an injury or illness. The clarification of the rule states that this may constitute retaliatory action against the employee for exercising his or her right to report an injury or illness. I have seen this many times in companies where “days without an injury” are tallied and large signs are kept in plain sight (I’ve even seen large electronic ones!). This practice clearly encourages employees to not report (although the employer typically would not acknowledge that), and could lead to an OSHA violation with this new rule.
These are important changes. Cal-OSHA will have to follow, or adopt this rule. Are you ready? Find all of the details of this final rule at: www.osha.gov/recordkeeping/finalrule.