By Robert G. Chadwick Jr.,  Partner, Freeman Mathis & Gary, LLP.

On May 12, 2016, OSHA published a Final Rule amending its recordkeeping regulations to include new anti-retaliation protections for employees who report work-related injuries and illnesses. The new anti-retaliation protections are effective August 10, 2016.

What Does the Final Rule Prohibit of Employers?

The Final Rule makes it unlawful for an employer to “discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”

What Does the Final Rule Require of Employers?

The Final Rule requires employers to take the following actions:

• Establish “a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness;”
• Inform “each employee of [its] procedure for reporting work-related injuries and illnesses;” and
• Inform “each employee that (1) Employees have the right to report work-related injuries and illnesses; and (2) Employers are prohibited from discharging or in any manner discriminating against any employee for reporting a work-related injury or illness.”

What Enforcement Options are Available for a Violation of the Final Rule?

The Final Rule seemingly allows for two enforcement options in the event of retaliation.  First, the Final Rule implies that discrimination against an employee for reporting a work-related injury or illness is itself a recordkeeping violation which can form the basis of an OSHA citation and fines.   OSHA inspections are thus an option for enforcement of the new anti-retaliation protections.

Second, the Final Rule interprets Section 11(c) of the OSH Act as already prohibiting retaliation “against an employee for reporting a work-related fatality, injury or illness.” Section 11(c) (1) provides a 30-day window for an employee to file a complaint, (2) is enforced through investigations conducted by OSHA’s Whistleblower Protection Program,  (3) authorizes the Department of Labor to  bring suit against an employer in a U.S. District Court for unlawful retaliation, and (4) authorizes a U.S. District Court “to order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.”