The Occupational Safety and Health Administration (“OSHA”) has implemented new rules with respect to its recording and reporting regulations under 29 CFR 1904. The new rule requires certain employers to electronically submit injury and illness data to OSHA that these employers are already required to keep under OSHA regulations. The new regulations also: (1) require employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; (2) clarify the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and (3) incorporate the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.
Although existing law prohibits employers from discharging or otherwise discriminating against an employee who reports an injury, OSHA may not act unless an employee files a complaint within 30 days of the act of retaliation. This new authority gives OSHA the ability to protect workers who have been subject to retaliation without a complaint filed by the employee.
These new rules also prohibit employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. However, according to the United States Department of Labor’s website, the new rules do not prohibit drug testing per se. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and this rule would not prohibit such testing.