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Between a Rock and a Hard Place: OSHA’s Stance on Injury Reporting Policies

Earlier this year the U.S. Department of Labor filed a lawsuit against U.S. Steel Corporation, Inc. in federal court alleging that the company violated the Occupational Safety and Health Act (OSH Act). So what did the company do to merit a federal lawsuit by a government agency? It required its employees to report work-related injuries immediately and disciplined two employees who did not. Specifically, the complaint alleges that the policy required “all employees to report immediately all injuries to a supervisor.” Most employers (if not all) would be shocked to learn that requiring compliance with such a commonplace policy may be considered unlawful.  

According to the lawsuit, an employee named John Armstrong “bumped his head” on a low-hanging beam while wearing a hard hat. Armstrong did not report the injury to his supervisor because he did not immediately feel any pain or experience any symptoms. But, four days later after experiencing pain in his shoulder, he saw his doctor and only after did he report the injury to his union who notified U.S. Steel. Armstrong was suspended for five days without pay for failing to report the injury immediately

In another situation at U.S. Steel, an employee, Jeff Walters, noticed a “small splinter in his thumb.” Walters removed the splinter, returned to work and completed his shift. He did not report the injury to his supervisor until two days later, after visiting a doctor for swelling in his thumb. He then reported the injury to U.S. Steel. He was suspended for five days without pay (later reduced to two days) for failing to immediately report the injury.

Both workers filed complaints with the Occupational Safety and Health Administration (OSHA) alleging that U.S. Steel retaliated against them for reporting workplace injuries. OSHA subsequently investigated each complaint and found that the company violated the anti-discrimination provision of the OSH Act. Despite this finding, U.S. Steel refused to rescind the disciplines for either worker and the DOL subsequently filed suit (the DOL is empowered to bring civil actions to enforce this provision). The DOL is asking the court to, among other things, prohibit U.S. Steel from enforcing a policy requiring employees to report their workplace injuries or illnesses “earlier than seven (7) calendar days after the injured or ill employee becomes aware of his or her injury or illness.”

In the lawsuit OSHA and the DOL take the position that employers who require employees to report an injury or illness in a specific manner, or within a limited timeframe, and then punish employees who do not comply with the rule violate the anti-discrimination provision (Section 11(c)) of the OSH Act. OSHA has interpreted this statutory provision to prohibit “discriminat[ion] against an employee for reporting a work-related fatality, injury or illness.” 29 C.F.R. § 1904.36. The DOL and OSHA argue that strict reporting rules, in conjunction with penalties for non-compliance, deter employees from reporting workplace injuries and illnesses for fear of discipline.

OSHA first discussed this policy in a controversial March 2012 memorandum addressing guidelines on workplace policies and practices that potentially discourage workers from reporting work-related injuries and illnesses. In the memorandum, OSHA specifically stated that policies that directly result in worker discipline for reporting a workplace injury or illness require careful scrutiny. In order to be lawful, the rule must be reasonable and not “unduly burden the employee’s right and ability to report.” The memorandum used the example of a work rule that penalizes workers “who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all” – exactly what the DOL is alleging occurred at U.S. Steel.

Unfortunately, this position fails to take into account an employer’s legitimate business reasons for having these policies in the first place. These policies are often required for insurance purposes. In addition, these policies allow employers to take immediate steps to rectify the injury causing situation and keep other workers from getting hurt. This helps the safety of the workplace as a whole and reduces liability concerns. Employers also have immediate notification policies in place so that, in case of a workplace injury possibly caused by substance abuse, an employer is able to have the employee drug tested. If an employer does not have an immediate reporting policy, a worker who is injured while under the influence may be able to wait to report the injury for a few hours (or days) until a test will fail to detect any illicit substances.  

Keeping employees safe? What’s an employer to do? Review options with counsel. Monitor changes in regulations. New OSHA regulatory changes are imminent as discussed in greater detail here in a separate Nemeth law Employment Blog.

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