FEATURE | OSHA Regulations
and competitors. Another significant concern is employee privacy. Although OSHA states that it will use software to remove employees’ private information from the disclosures prior to posting, there is no guarantee the software will be effective. Tellingly, the rule requires employers to withhold certain private employee information. Anti-Retaliation Provisions The new rule’s anti-retaliation provisions also create additional employer obligations and concerns. Previously, employers were required to provide “limited” access to injury and illness records to their employees and their representatives. The final rule removes the word “limited.” There is a concern that employees might try to exploit the change to unduly burden employers with unreasonable demands for access. In addition, employers previously had to notify employees of how to report injuries and illnesses. That is still the case, but now employers also must ensure that the reporting procedure is “reasonable.” According to OSHA, a procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness. This aspect of the rule targets employer programs and policies that have the effect of not just punishing workers for not timely reporting injuries, but also if the policy would deter or discourage an employee from reporting the injury. Specifically, OSHA has called into question employer safety incentive programs based on recordable injuries and blanket post-accident drug testing under certain circumstances. Under Section 11(c), 29 U.S.C. §660(c), employees who believe they have been retaliated against for reporting work-related injuries or illnesses may file an 11(c) complaint with OSHA within 30 days of the alleged retaliatory act. (Kentucky OSHA has a similar process under KRS 338.121(3)(b)). OSHA can then investigate the employee’s complaint, and may file an action in federal court on behalf of the employee seeking the employee’s reinstatement, back pay, front pay, and punitive damages. The new anti-retaliation provisions would allow OSHA to issue citations to employers for allegedly retaliating against employees, even if no employee has filed a complaint. While OSHA anticipates that feasible means of abatement for a violation under the new anti-retaliation provisions would “mirror” remedies available under 11(c), there is still uncertainty as to the legal authority for this and how the provisions will be enforced. States that have their own OSHA plan are required to have OSHA programs that are at least as
effective as Federal OSHA, and are consequently required to adopt and implement new federal standards, or a more stringent standard, within six (6) months of the adoption or amendment by Federal OSHA. Kentucky OSHA has proposed adoption of the Federal OSHA regulation with a January 1, 2017 effective date. The new rule’s anti-retaliation provisions were recently challenged by several employer associations and others in a lawsuit filed in a federal court in Texas asking the court to enjoin the anti-retaliation provisions from taking effect as scheduled on August 10, 2016. Although OSHA is delaying enforcement of the provisions until November 1, 2016, it is not clear at this time whether that federal lawsuit, and any injunction that may be issued in that case, would have any effect on state efforts to adopt the new Federal Recordkeeping regulation. Tips for Compliance with OSHA’s New Recordkeeping Requirements. Whether the new rule will actually improve worker safety, or merely make it harder for employers to do business, is debatable. Nevertheless, to ensure compliance, employers should review their internal injury and illness reporting and processing procedures and revise them as needed to comply with the new rule. Employers also must inform employees that: (1) they have the right to report work-related injuries and illnesses; (2) they will not be terminated or otherwise discriminated against for reporting work-related injuries or illnesses; and (3) re-evaluate any policies concerning post-accident drug testing and safety incentive programs based on recordable injuries. Finally, employers need to be mindful of what they should not electronically submit to OSHA—i.e., employee names, employee addresses, physician names, and the names and addresses of facilities where employees received treatment—to protect private employee information.
Todd B. Logsdon is a Partner in the Louisville office of Fisher & Phillips LLP and is licensed to practice law in Indiana and Kentucky. He practices exclusively in the areas of labor and employment on behalf of employers, with a particular emphasis on discrimination, wage and hour issues, FMLA and OSHA issues. Todd may be contacted directly at (502) 561 3971 or tlogsdon@fisherphillips.com. Chantell C. Foley is an Associate in the Louisville office of Fisher & Phillips LLP and is licensed to practice law in Kentucky. She practices exclusively in the areas of labor and employment on behalf of employers. Chantell may be contacted directly at (502) 561 3969 or cfoley@fisherphillips.com. KENTUCKY ASSOCIATION OF MANUFACTURERS
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