The recent settlement of a whistleblower case brought under Section 11(c) of the Occupational Safety and Health Act has provided the first guidance by OSHA of its expectations under the new §1904.35 “Reasonable Reporting Procedure” rule. On February 17, the U.S. Department of Labor filed suit against U.S. Steel, alleging that the company had violated Section 11(c) of the OSH Act by suspending two employees who had failed to report their work-related injuries within the time frame of what has been described as the Company’s “Immediate Reporting Policy.”

The case settled last week, and included in the settlement is a sample of an injury or illness reporting policy that OSHA apparently considers to be compliant. (Here is the settlement agreement; the sample policy is Exhibit A.) The policy that U.S. Steel has agreed to adopt (and the DOL has agreed to accept) requires employees to report all workplace injuries and illnesses to management “as soon as reasonably possible after they occur, but in no event later than leaving the plant or 8 hours after becoming aware of the injury or illness, whichever is earlier.” This language is intended to address the situation in which an employee is not immediately aware of the injury or illness that occurred as a result of a workplace event or exposure. The Settlement Agreement also provides that if an incident occurs that does not result in an injury or illness, the incident must be reported “as soon as reasonably possible, but in no event later than leaving the plant.”

In sum, OSHA has now provided employers with an example of a policy that arguably will be viewed as non-retaliatory under either Section 11(c) of the OSH Act, or under §1904.35(b)(1)(iv) when the latter goes into effect on November 1.

The DOL lawsuit against U.S. Steel

Before the settlement, U.S. Steel policy required employees to report all work-related injuries “immediately” to a supervisor. In one case, an employee got a splinter in his thumb at work and removed the splinter himself. He did not report the injury until two days later, when his thumb had become swollen and he sought medical treatment. In another case, an employee bumped his head on a beam but did not report the injury until several days later, when he began to feel pain in his right shoulder. Both employees were suspended for five days without pay for violating the “Immediate Reporting Procedure.” The employees filed complaints with OSHA, alleging that the company violated Section 11(c) of the OSH Act, which prohibits employers from retaliating or discriminating against employees for exercising rights protected under the Act, in this case the reporting of their work-related injuries. OSHA determined that U.S. Steel had unlawfully retaliated against these two employees, and when the parties could not resolve the cases, the DOL filed suit in federal court in Wilmington, Delaware, seeking, among other remedies, lost wages and benefits, and compensatory damages, including damages for emotional distress. The DOL also sought to permanently enjoin the company from enforcing a reporting policy that would require employees to report their injuries or illnesses earlier than seven calendar days after the employee became aware of the injury or illness.

Under the terms of the settlement reached last week, in addition to U.S. Steel’s adoption of the new reporting policy, the employees were paid back wages, with interest, for the time lost from work without pay.

The U.S. Steel case arose before OSHA had promulgated §1904.35, the new Reasonable Reporting Procedure rule that was initially scheduled to go into effect on August 10, and has now been delayed until November 1. Like Section 11(c) of the OSH Act, §1904.35(b)(1)(iv) prohibits employers from discharging or in any manner discriminating against an employee for reporting a work-related injury or illness. As we have previously reported, §1904.35(b)(1)(iv) has been challenged in federal district court, but that lawsuit, as presently pled, does not challenge OSHA’s position on employers’ enforcement of timely reporting policies. OSHA’s position, as expressed in its March 12, 2012, Memorandum, is that an employer’s policy requiring timely reporting of injuries or illnesses could violate Section 11(c) of the OSH Act or §1904.35(b)(1)(iv) if the required timeframe for reporting is not “reasonable.” As in the U.S. Steel case, if OSHA determines that an employer’s policy does not provide an injured or ill employee with enough time to recognize that the injury or illness was work-related, the policy will probably be determined to violate Section 11(c) or §1904.35(b)(1)(iv).

Regardless of the timeframe for reporting under an employer policy, if the employee has a “reasonable” explanation for a delay in reporting (for example, that he or she was not aware of the symptoms until after the required reporting period, or had not realized that the symptoms were related to the workplace incident), OSHA will probably give “careful scrutiny” to an employer’s decision to discipline the employee for violation of the timely reporting policy.

Because the timely reporting aspect of §1904.35(b)(1)(iv) is not being challenged in court, we recommend that you review your existing timely reporting policies, both as written and as applied, to ensure that they will not be viewed by OSHA as violating the new rule.

If you have any questions about the implications of §1904.35, please contact Bill Principe, Steve Simko, David Smith, Pat Tyson, or Neil Wasser.

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