August 1, 2016

Three common ways OSHA's anti-retaliation are violated

As you’ve probably heard, the Occupational Safety and Health Administration (OSHA) is expanding its Injury and Illness Recordkeeping Rule to encourage greater transparency of employer injury and illness data. The rule will require some employers to disclose occupational injury and illness information (which they’re already required to maintain) to OSHA electronically. It will also give OSHA permission to post this information on a website that’s accessible to the public, ultimately holding employers accountable for workplace safety practices.

It’s likely that the published employer injury and illness data will receive more publicity. With injury and illness information available at the click of a mouse, potential clients, investors and the general public could review injury and illness histories before making business decisions. The rule may also increase the risk of penalty for false statements made to the government (18 U.S.C. § 1001) or for various worker-endangerment violations.

To address the concern that injuries and illnesses may be underreported, OSHA is also implementing anti-retaliation provisions of the rule that ensure employers aren’t deterring employees from reporting an injury or illness in the first place. The provisions are designed to promote policies that encourage workplace safety without discouraging reporting.

The anti-retaliation provisions go into effect on Nov. 1, 2016, and the rule itself takes effect on Jan. 1, 2017, so it’s important that you understand now what this means to you. You need to be aware because you may be inadvertently violating these provisions, which could endanger your employees and get you in trouble.

Here are 3 things that may be a part of your workplace safety policies and would violate the new provisions:

  1. Mandatory post-accident drug testing programs. A drug-testing policy should be in place that requires drug testing on a regular basis rather than after an accident.
  2. Excluding injured employees from workplace benefits. This could mean they aren’t allowed to be a part of prize drawings, celebrations, or other workplace events and/or benefits.
  3. Providing an incentive for employees who haven’t been injured. If you’re trying to minimize injury by providing a cash bonus, time off or other compensation for employees who don’t incur injury, you could be in violation.

Pinnacol suggests that you review your current safety policy to ensure that it doesn’t encourage underreporting, even if the goal is to minimize workplace injuries. We know this can get complicated, so our safety consultants are here to help. Please contact Safety On Call at