OSHA Recordkeeping Guidance Too Vague

The Occupational Safety and Health Administration (OSHA) recently rolled out a New Enforcement Guide for OSHA Recordkeeping, Incentive Rule. Critics are questioning the substance of the Guidance due to a lack of precision regarding the terms of the regulation. Specifically,

• The rule requires “reasonable” employer programs, but doesn’t spell out what that means, and

• The guidance describes when to open whistle-blower investigation, but the circumstances for what qualifies as an “appropriate” cause for starting an investigation will vary significantly.

For example, inspectors can cite employers for discouraging workers from reporting injuries and illnesses even when an inspector couldn't find an employee who didn't make a report, according to newly issued OSHA enforcement procedures.

Instead, the inspector only has to identify a worker who “would be deterred or discouraged” from making a report in the future, the guidance says.

The memorandum is intended for OSHA staff. However the guidance can be used by employers to help determine if they are meeting the rule's mandates.

‘Reasonable’ Questions

The rule requires employers to have “reasonable” procedures for reporting on-the-job injuries and illnesses.

The memorandum also details when safety and health inspectors should ask investigators from OSHA's Directorate of Whistleblower Protection Programs to open an inquiry.

The new guidance says an employers’ reporting policies must be “reasonable.”

The evidence for a violation “is based on whether the employer's procedure is unduly burdensome and/or would discourage a reasonable employee from reporting,” the memorandum says.

The test of “reasonable,” the guidance says, is whether the procedure would discourage a “reasonable employee from reporting.” Opponents of the rule have said OSHA's dependence on “reasonable” is too vague.  “Reasonable” gives employers no guidance whatsoever.”

Appropriate Varies

The rule also requires employers to notify each employee of how to report workplace injury or illness and their right to make reports.

However, the procedures that are appropriate will vary.

“The size of the workforce, employee language proficiency and literacy levels, the workplace culture, and other factors will determine what will be effective for any particular workplace,” the guidance says.

In cases where an employee claims he or she was punished for making a report, the allegations will be referred to OSHA whistle-blower investigators, the memorandum says.

OSHA will issue a citation if the whistle-blower investigation determines the employer took “an adverse action against an employee for reporting a work-related injury or illness” within six months of issuing the citation.

TRSA is reviewing the rule and guidance.