On October 19 the Occupational Safety and Health Administration (OSHA) released a memorandum explaining two provisions added to the record keeping regulation. Section 1904.35(b)(1)(i) makes explicit the longstanding requirement for employers to have a reasonable procedure for employees to report work-related injuries and illnesses. Section 1904.35(b)(1)(iv) prohibits retaliation for reporting work-related injuries and illnesses.

To establish a violation of section 1904.35(b)(1)(i), OSHA must show that the employer either lacked a procedure for reporting work-related injuries or illnesses, or that the employer had a procedure that was unreasonable. The employer must establish a reasonable procedure for employees to report work-related injuries and illnesses. As OSHA explained in the preamble to the final rule, this requirement was implicit in the previous version of the rule, which required employers to establish a "way" for employees to report work-related injuries and illnesses. An employer’s reporting procedure is reasonable if it is not unduly burdensome and would not deter a reasonable employee from reporting.  The procedure must allow for reporting of work-related injuries and illnesses within a reasonable timeframe after the employee has realized that he or she has suffered a recordable work-related injury or illness and in a reasonable manner.

Section 1904.35(b)(1)(iv) prohibits employers from retaliating against employees for reporting work-related injuries or illnesses. In the preamble to the final rule, OSHA explained that it promulgated section 1904.35(b)(1)(iv) to address concerns from commenters about three types of policies that can be used to retaliate against workers for reporting work-related injuries or illnesses and therefore discourage or deter accurate recordkeeping: disciplinary policies, post-accident drug testing policies, and employee incentive programs. OSHA made clear in the preamble that it is not prohibiting these kinds of policies categorically, and that section 1904.35(b)(1)(iv) does not impose any new obligations or restrictions on employers. Rather, section 1904.35 gives OSHA another mechanism to address conduct that has always been unlawful—retaliating against employees for reporting work-related injuries or illnesses.

To issue a citation under section 1904.35(b)(1)(iv), OSHA must have reasonable cause to believe that a violation occurred—in other words, that an employer retaliated against an employee for reporting a work-related injury or illness. To make this showing, OSHA must demonstrate the well-established elements of retaliation. In this context, those elements include:

-The employee reported a work-related injury or illness;
-The employer took adverse action against the employee (that is, action that would deter a reasonable employee from accurately reporting a work-related injury or illness); and
-The employer took the adverse action because the employee reported a work-related injury or illness.

Section 1904.35(b)(1)(iv) does not prohibit employers from disciplining employees who violate legitimate safety rules or reasonable reporting procedures. Rather, it prohibits disciplining employees simply because they report a work-related injury or illness. In some cases, OSHA will have direct evidence that an employer disciplined an employee simply for reporting a work-related injury or illness, such as a policy under which the employer automatically disciplines all employees who report work-related injuries or illnesses without regard to whether the reporting employee violated a work rule, or statements by the employer indicating that it disciplined the employee simply for reporting. Direct evidence of retaliation is sufficient to establish a violation.

To establish a violation of section 1904.35(b)(1)(iv) in a case where an employer claims it disciplined an employee who reported a work-related injury or illness for a legitimate business reason such as violating a workplace safety rule, or a rule on the time, place or manner for reporting an injury or illness, OSHA will need to show that the real reason for the discipline was the reported injury or illness and not the rule violation. As is typically true in a discrimination case, circumstantial evidence can satisfy this burden, as direct evidence of the employer's real reason for the adverse action may not exist.

Section 1904.35(b)(1)(iv) does not prohibit employers from drug testing employees who report work-related injuries or illnesses so long as they have an objectively reasonable basis for testing, and the rule does not apply to drug testing employees for reasons other than injury-reporting. Moreover, OSHA will not issue citations under section 1904.35(b)(1)(iv) for drug testing conducted under a state workers’ compensation law or other state or federal law. Drug testing under state or federal law does not violate section 1904.35(b)(1)(iv). See sections 4(b)(1) and 4(b)(4) of the OSH Act, 29 U.S.C. §§ 653(b)(1) & (4). Section 1904.35(b)(1)(iv) only prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so. And, as in all cases under section 1904.35(b)(1)(iv), OSHA will need to establish the three elements of retaliation to prove a violation: a protected report of an injury or illness; adverse action; and causation.

When evaluating whether an employer had a reasonable basis for drug testing an employee who reported a work-related injury or illness, the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness. If so, it would be objectively reasonable to subject the employee to a drug test. When OSHA evaluates the reasonableness of drug testing a particular employee who has reported a work-related injury or illness, it will consider factors including whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred), whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness, and whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due the hazardousness of the work being performed when the injury or illness occurred. OSHA will only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available. Therefore, at this time, OSHA will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs. The general principle here is that drug testing may not be used by the employer as a form of discipline against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances.

Section 1904.35(b)(1)(iv) does not prohibit safety incentive programs. Rather, it prohibits taking adverse action against employees simply because they report work-related injuries or illness. Withholding a benefit—such as a cash prize drawing or other substantial award—simply because of a reported injury or illness would likely violate section 1904.35(b)(1)(iv) regardless of whether such an adverse action is taken pursuant to an incentive program.6 Penalizing an employee simply because the employee reported a work-related injury or illness without regard to the circumstances surrounding the injury or illness is not objectively reasonable and therefore not a legitimate business reason for taking adverse action against the employee. However, conditioning a benefit on compliance with legitimate safety rules or participation in safety-related activities would not violate section 1904.35(b)(1)(iv).