In an excellent article, attorneys Rod Smith, Pat Miller and Matt Morrison of Sherman & Howard explained the implications of a recent OSHA announcement that it was seeking comment on proposed rules that would allow it to issue citations to employers who retaliate against employees who report injuries.
The proposed rules would, among other things, prohibit discipline against employees for reporting injuries and illnesses as part of OSHA’s recordkeeping process. While retaliation for reporting injuries and illnesses has long been against the law, the current procedure involves an investigation by OSHA, which if it believes a complaint of retaliation is justified, refers the matter to attorneys at the Department of Labor. They then decide whether to file suit against the employer on behalf of the employees involved.
Under this new proposal, however, OSHA could cite employers who it believes have retaliated against employees for reporting injuries or illnesses, even if the employees do not file their own complaints.
As the article noted:
“Because the notice of proposed rulemaking makes it clear that among the prohibited acts would be ‘pre-textual disciplinary actions – that is, where an employer disciplines an employee for violating a safety rule, but the real reason for the action is the employee’s injury or illness report,’ OSHA proposes giving itself the authority to determine when an employer’s reasons for discipline are genuine and when they are not.
“If this regulation is adopted, Review Commission Judges will be making determinations normally left for juries, i.e. whether the employer’s reasons for disciplining an employee are accurate or, rather, are a pretext for retaliation.
“We believe that this proposed regulation represents a radical departure from OSHA’s traditional role of ensuring a safe work environment to a more “human resources watchdog,” a function for which it is ill-equipped.”