Client Bulletin #573
The U.S. Department of Labor recently filed suit against United States Steel Corporation, alleging that the company's injury-reporting policy violates §11(c) of the Occupational Safety and Health Act. The suit claims that the policy — which allegedly requires employees to report injuries "immediately" — is unlawful on its face and as applied to two employees who had failed to report their injuries in a timely manner and as a result were suspended for five days without pay. The DOL also contends that the policy violates §1904.35(b)(1) of the OSHA injury and illness recordkeeping regulations, apparently on the ground that the disincentive to late reporting did not comply with the requirement that employers "advise employees how to report injuries."
Background
In March 2012, the Occupational Safety and Health Administration issued a memorandum addressing its guidelines on workplace policies and practices that could discourage employees from reporting work-related injuries and illnesses and could therefore potentially violate §11(c) of the OSH Act and other whistleblower statutes, as well as §1904.35(b)(1). Section 11(c) prohibits employers from retaliating or discriminating against employees who exercise protected activities under the OSH Act, including the reporting of an injury or illness. Section 1904.35(b)(1) requires employers to inform employees how to report injuries and illnesses.
Among the potentially discriminatory policies addressed in the 2012 memorandum were employer policies that required employees to report injuries within a certain period of time. OSHA specifically noted that "employers have a legitimate interest in establishing procedures for receiving and responding to reports of injuries," and although it did not prohibit these prompt-reporting policies it said that "such cases deserve careful scrutiny." OSHA also warned that reporting procedures need to be "reasonable" and not unduly impair the employee's rights and ability to report [a work-related injury or illness]." As an example of a prohibited policy, OSHA explained that "the rules cannot penalize workers who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all."
In investigating these types of cases, OSHA instructed its investigators to focus on the following factors:
1. Whether the employee's deviation from the procedure was minor or extreme, inadvertent or deliberate;
2. Whether the employee had a reasonable basis for not reporting within the required time frame;
3. Whether the employer can show a substantial interest in the rule or its enforcement; and
4. Whether the discipline imposed appears to be disproportionate to the employer's asserted interest.
The lawsuit against U.S. Steel
According to the DOL lawsuit, U.S. Steel's policy allegedly requires employees to report all work-related injuries and illnesses "immediately" but does not define what "immediately" means. The policy does not directly impair the right or ability of employees to report injuries or illnesses; instead, it sanctions employees for not reporting their injuries and illnesses in a timely manner. Presumably, the company needs prompt reporting so that it can meet its legal obligations and business needs.
According to the lawsuit, one employee bumped his head on a beam while wearing a hard hat and did not report the incident or the resulting symptoms in his right shoulder until four days later. The DOL contends that, at the time of the incident, the employee did not feel any pain or discomfort and was able to finish his shift. The second employee allegedly noticed a small splinter in his thumb, which he removed himself, but completed his shift without further problems. This employee reported the existence of the splinter two days later, after his thumb became swollen and he sought medical treatment. Both employees were suspended without pay for five days as a result of failing to report their injuries within the required time under the policy — "immediately."
The two employees filed retaliation complaints with OSHA, alleging that the Company had violated §11(c) of the OSH Act, and OSHA found in their favor. When the cases could not be resolved informally, the DOL filed its lawsuit.
In the lawsuit, the DOL seems to be going much further than simply seeking some sort of reasonable "balance": the DOL seeks to prohibit U.S. Steel from having any requirement that an employee report an injury or illness earlier than seven days after the employee becomes aware of it. This seems like an extreme solution that would create many problems for employers. It would negate the benefits of early reporting (prompt corrective action to correct the hazard as well as prompt medical care for the employee). It could also permit an employee who was impaired by drugs or alcohol at the time of the injury to circumvent a substance abuse test.
Analysis
Many, if not most, employers require employees to report work-related injuries or illnesses immediately or within a short time frame, sometimes by the end of the shift on which the injury occurs or the symptoms of the illness become known. Employers have a legitimate reason to require prompt notification so that (1) the underlying conditions that contributed to the injury or illness can be investigated and rectified promptly, which prevents other employees from being injured or made ill by the conditions, and (2) the injury or illness can be promptly assessed and treated, rather than aggravated because of a lack of early intervention.
Employers also have legitimate interests in requiring post-accident drug tests and in evaluating whether the employee's condition resulted from a workplace incident or, instead, activities away from work.
For some employers, "immediate" reporting and prompt employer action based on the employee report is required by law or is necessary to preserve rights under insurance coverage. For example, many state workers' compensation laws require employees to report workplace injuries and illnesses immediately on mandated forms. Likewise, employers subject to the controlled substance testing regulations of the Federal Motor Carrier Safety Administration are required to test certain employees for alcohol and other controlled substances within very short periods of time "post-accident" — essentially "immediately." Alcohol and some drugs, such as cocaine, are metabolized quickly, so the testing may not be meaningful if there is a delay.
On the other hand, the DOL argues that tight "reporting deadlines" can actually inhibit employees' reporting of workplace injuries and illnesses. According to the DOL, an employee who faces discipline for late reporting may elect not to report at all.
The DOL may be correct with respect to employees who do not require treatment by outside health care professionals, and therefore will not incur medical expenses. For them, penalties for reporting late outweigh any costs associated with failing to report entirely. But employees who need medical attention are likely to timely report their injuries or illnesses so that the company will pay for their treatment and they can qualify for workers' compensation benefits. Of course, the level of "disincentive" may depend to a great extent on how harsh the discipline is for failing to report in a timely manner. If the penalty for late reporting is only a verbal or written counseling, that seems unlikely to discourage "better late than never" reporting.
It is important to remember that the U.S. Steel lawsuit has just begun — the company has not had an opportunity to respond to the allegations in court. Employers should watch the case as it progresses through the court system, and in the meantime use judgment and discretion in applying their policies requiring prompt reporting of workplace injuries and illnesses. If you have a question about how to apply your policy in light of the DOL's position, please contact any member of our Occupational Safety and Health Practice Group or our Workers' Compensation Practice Group.
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