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On August 13, 2014, the United States Department of Labor, Occupational Health and Safety Administration (OSHA), issued a Supplemental Notice of Rulemaking which was related to its November 7, 2013, Notice of Proposed Rulemaking to amend OSHA injury and illness reporting requirements to add three new electronic reporting obligations. (A client alert was issued concerning the 11/8/2013 Notice). The Supplemental Notice explicitly states that OSHA considers any retaliation against an employee for reporting a work-related illness or injury a violation of Section 11(C) of the Occupational Safety and Health Act. In addition to the new interpretation of the protection afforded under Section 11(C), the Supplemental Notice will add three provisions to 29 CFR §1904.35(a)(1) and (b)(1).

Those provisions will require employers to: (1) inform employees of their right to report injuries and illnesses free from discrimination or retaliation; (2) implement injury and illness reporting requirements reasonable and not unduly burdensome; and (3) prohibit disciplining employees for reporting injuries and illnesses.

Under the new rules, the following types of employer activities are expressly prohibited:

  1. Mandatory drug testing every time an employee reports an injury (unless there is a reason to suspect drug use).
  2. Demanding that employees report illnesses and injuries within a certain time after being injured or becoming ill.
  3. Requiring employees report injuries and illnesses in-person to someone at a distant location (i.e., requiring field employees to report to someone in the office as opposed to their supervisor in the field).
  4. Terminating employees who are injured because they failed to abide by the employer’s safety rules.
  5. Disciplining employees who report injuries or illnesses or terminating employees who have more than X injuries.
  6. Enforcing vague safety rules like “situational awareness” and “work carefully” only after an employee is injured.
  7. Enrolling employees in “Repeat Offender” programs.

The sixty (60) day comment period began on August 14, 2014. The new rules were expected to go into effect around January 1, 2015. If enacted, these new rules could go in effect by March 1, 2015.