Incident reduction secondary in rewrite of OSHA reporting, anti-retaliation rules

By Don Marsh

An Associated Builders & Contractors-led lawsuit filed last month adds perspective to the curious Occupational Safety and Health Administration case noted here in April, where United States Steel Corp. found itself on the defensive for a zero tolerance policy on delayed workplace injury reporting. The ABC action spotlights anti-retaliation measures the agency applied to the Pittsburgh-based steelmaker.

ABC enlisted another Pennsylvania company, Atlantic Precast Concrete Inc., and six co-plaintiffs to seek an injunction on a portion of OSHA’s “Improve Tracking Workplace Injuries and Illnesses” rule, effective this month. They request the U.S. District Court for the Northern District of Texas declare unlawful three points in the rule’s Section 1904.35, “Employee involvement/Implementation,” presented as responses to a question about ensuring employees report work-related injuries and illnesses. The rule holds that employers must:

  • Establish a reasonable procedure for employees to report such matters 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 employees a) of their the right to report such matters, and b) that employers are prohibited from discharging or in any manner discriminating against employees for such reporting.
  • Not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.

Those requirements, the suit argues, “Prohibit or limit incident-based employer safety incentive programs and/or routine mandatory post-accident drug testing programs.” In their complaint on behalf of Atlantic Precast, ABC and co-plaintiffs, attorneys elaborate on how incentive and testing programs “help employers to promote workplace safety, which is supposed to be OSHA’s primary mission. Instead, out of a misguided zeal to improve accuracy of reporting on workplace injuries (albeit with no evidence that injuries are not already being accurately reported), OSHA has lost sight of the importance of reducing the number and severity of injuries themselves.”

Joining ABC and Atlantic Precast are Owens Steel Co., a Columbia, S.C., fabricator, and Oxford Property Management LLC, Rochester, Minn. The latter three carry workers compensation coverage through a fourth plaintiff, Great American Insurance Co., Cincinnati. “Plaintiffs have implemented comprehensive incident-based safety incentive programs that encourage worker participation and interest in workplace safety,” attorneys note. “If these programs are eliminated by implementation of Section 1904.35(b)(1) as they must be according to OSHA’s statements in the New Rule, then Plaintiffs’ workplace safety will be significantly jeopardized and workplace injuries and illnesses will significantly increase in both frequency and severity, causing irreparable harm to the Plaintiffs’ members and insureds, and their employees.”

While stressing staff and member commitment to working with the agency on creating safer work sites, ABC Vice President of Health, Safety, Environment Greg Sizemore adds, “It’s inconceivable to those of us who study how to improve safety performance that OSHA would want to limit drug and alcohol testing as part of the investigation after an accident or near-miss incident. Root cause analysis is key to developing procedures that prevent future incidents, so we need to know whether drugs or alcohol were a factor. We also object to OSHA’s attempt to restrict or eliminate programs that recognize workers for helping to establish a high-performance safety culture.”

In addition to a preliminary injunction blocking OSHA implementation of three “Improve Tracking Workplace Injuries and Illnesses” Section 1904.35(b)(1) paragraphs, the suit seeks the court’s declaration that they unlawful because such anti-retaliation provisions exceed or were not adopted in accordance with OSHA’s statutory jurisdiction, authority or applicable procedural requirements. Evoking a familiar refrain for the actions of federal agencies beholden to a White House claiming concern for workers’ safety and livelihoods, plaintiffs attorneys cap their plea to the court by describing the anti-retaliation provisions as “arbitrary, capricious, an abuse of discretion, and otherwise contrary to law.”

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