U.S. Department of Labor

Occupational Safety and Health Administration
Washington, D.C. 20210
Reply to the attention of:

November 10, 2016

MEMORANDUM FOR:
 

REGIONAL ADMINISTRATORS
STATE DESIGNEES

THROUGH:

DOROTHY DOUGHERTY
Deputy Assistant Secretary

FROM:

THOMAS GALASSI, Director
Directorate of Enforcement Programs

SUBJECT:

Interim Enforcement Procedures for New Recordkeeping Requirements Under 29 CFR 1904.35

This memorandum establishes interim procedures for enforcing new provisions in OSHA's occupational injury and illness recordkeeping regulation, 29 CFR 1904.35, Employee involvement. Employers are required to establish and inform employees of their reasonable procedure for reporting work-related injuries and illnesses and are prohibited from discharging or retaliating against an employee who reports a work-related injury or illness.

On May 12, 2016, OSHA issued a final rule revising its occupational injury and illness recordkeeping and reporting requirements in 29 CFR 1904.35, Employee involvement. Changes to Section 1904.35 became effective on August 10, 2016. However, the Agency delayed enforcement of those provisions until December 1, 2016. The new provisions addressed in these Interim Enforcement Procedures require employers to have a reasonable procedure for reporting work-related injuries and illnesses and to inform employees of that procedure and of their right to report work-related injuries and illnesses free from discrimination/retaliation. Also, the new rule prohibits employers from discriminating or retaliating against any employee who reports a work-related injury or illness. (See Appendix A, Summary of New Requirements.)

The new rule also includes changes to Section 1904.41, Electronic Submission of Injury and Illness Records to OSHA. Those provisions are not effective until January 1, 2017 and are not addressed in this memorandum. The complete final rule can be viewed at 92 FR 29624-29694, Improve Tracking of Workplace Injuries and Illnesses.

The National Office has established these Interim Enforcement Procedures to ensure that OSHA field offices are prepared for the receipt of complaints related to the new provisions. They are interim enforcement guidance that will be evaluated and adjusted after the new provisions are in effect.

Specifically, these Interim Enforcement Procedures provide guidance to the Area Offices for enforcement of the new requirements in the recordkeeping sections 1904.35(b)(1)(i),(ii), and (iii). Included in these Interim Procedures are Special Interim Procedures for enforcing the new anti-retaliation provision in section 1904.35(b)(1)(iv) and for making administrative referrals to the Whistleblower Protection Program (WPP) in the Regions for pre-citation consultation and investigation. These interim procedures follow procedures contained in the Field Operations Manual (FOM), Chapters 3 and 9.

Concurrent with these Interim Enforcement Procedures, the National Office has established Interim Investigation Procedures to ensure that complaints are properly investigated by the WPP. (See Appendix B, Interim Investigation Procedures for Section 29 C.F.R. 1904.35(b)(1)(iv).) Those procedures provide guidance to the WPP for conducting an expedited investigation.

Collectively, these interim procedures address the separate responsibilities of the WPP and the Area Offices for enforcement of the new anti-retaliation provision. Among other things, Area Offices have responsibility for following the FOM in determining when an inspection is opened, entering data into OIS, and preparing the citation package. The WPP has responsibility for investigating the retaliation complaints, recommending whether or not to issue a citation, and determining make-whole remedies when appropriate. The procedures provide for coordination between Area Offices and the WPP on matters such as sharing of relevant information and resolution of citations through informal settlements.

The following is a summary of the enforceable requirements and the inspection and citation guidance for these provisions:

These Special Interim Procedures provide general information to Area Offices on the elements of a violation of the anti-retaliation provision at section 1904.35(b)(1)(iv). The Area Office's decision to conduct an inspection of a potential violation of Section 1904.35(b)(1)(iv) must be based on sufficient information to warrant an inspection pursuant to current FOM procedures (Chapter 9) and the conduct of the inspection must follow current FOM procedures (Chapter 3). Under these Special Interim Procedures, the Area Office will refer the investigation into the merits of the potential violation to the WPP. These Special Interim Procedures detail the process for the referral of cases by the Area Office to the WPP for investigation and referrals from the WPP to the Area Office for opening of inspections. Also, these Special Interim Procedures address citation procedures and post-citation informal settlements.

The WPP has developed Interim Investigation Procedures that provide guidance to the WPP regarding the investigation of potential violations of 1904.35(b)(1)(iv), the preparation of a memorandum of investigation regarding the merits of the complaint, and recommendations of remedies and damages, where appropriate. (See Appendix B.)

Both the Special Interim Procedures and the Interim Investigation Procedures provide that the Area Office, in consultation with the WPP, will determine whether to issue the citation, and if so, the Area Office will enter the information into OIS and prepare the citation package.

NOTE: If the same inspection also involves safety and health violations, the Area Director may exercise his or her discretion to issue those citations separately from a section 1904.35(b)(1)(iv) citation.

NOTE: These interim procedures do not affect in any way Regional procedures that are currently in place for intake of Section11(c) complaints. Each Region will continue to follow its current procedure for intake and referral of 11(c) complaints. As addressed in the WPP Interim Investigation Procedures (Appendix B), upon receipt of the 11(c) referral, the WPP will, when appropriate, make a referral to the Area Office to open an inspection related to a potential violation of section 1904.35(b)(1)(iv).

Complaints received by the Area Office will follow the standard procedures for complaint intake. To help aid in tracking the number of complaints received for a 1904.35(b)(1) violation, include the standard number that is allegedly violated in the text field of the "Hazard Description and Location." At a minimum, "1904.35(b)(1)" needs to be included in the text field in order to facilitate tracking in OIS.

EXAMPLE:

1904.35(b)(1)(iv): Employer has discharged or in some manner discriminated against an employee for reporting a wok-related injury or illness.

All Federal Executive Branch agencies regardless of location (including those overseas), size, or industry classification must collect and maintain OSHA-required injury and illness data. In addition, with the updates to 29 CFR 1960 on August 5, 2013, Federal agencies were required to annually submit that data to the Department of Labor. Each agency must submit to the Secretary by May 1 of each year all information included on the agency's previous calendar year's occupational injury and illness recordkeeping forms. Currently, Federal agencies submit their data through BLS, either by entering the data directly on-line or uploading a flat-file of their data.

The revised reporting requirements of 29 CFR 1904.35 are applicable to all Federal agencies, no matter their location.

NOTE: OSHA has also developed a document that answers common questions concerning Federal agencies' recordkeeping. (See Frequently Asked Questions for OSHA's Injury and Illness Recordkeeping Rule for Federal Agencies.)

To ensure that the public is informed of the new requirements under 29 C.F.R. 1904.35, OSHA is engaging in outreach to industry and interested parties. Area Offices are encouraged to conduct their own outreach initiatives. For further information and resources, please see the OSHA website at https://www.osha.gov/recordkeeping/finalrule/index.html.

If you have any questions regarding these new requirements and the enforcement plan, please contact the Directorate of Enforcement Programs, Office of General Industry and Agricultural Enforcement.

Resources:

Appendixes:

1. Overview of New Regulations and Procedures
2. Enforcement and Citation Guidance for Violations of 1904.35(b)(1)(i),(ii), and (iii).

   Section 1904.35(b)(1)(i)

   Establish reasonable reporting procedure. This provision requires that an employer must establish a reasonable procedure for employees to report work-related injuries or illnesses promptly and accurately. While the new regulation uses the word "procedure," the basic requirement is the same as the previous regulation, which required that the employer must set up "a way" for employees to report work-related injuries and illnesses. The new provision states that "a procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness." The regulation does not require that the procedure be in writing.

   Evidence to establish a violation is based on whether the employer's procedure is unduly burdensome and/or would discourage a reasonable employee from reporting. The test of "reasonable" is an objective test: would the procedure discourage a reasonable employee from reporting?

   Under these Interim Enforcement Procedures, OSHA will only issue citations under section 1904.35(b)(1)(i) if the employer's procedure regarding the time and means for filing a report of an injury or illness is "unreasonable." The "time" and "means" refers to when and how the employer's procedure requires employees to report injuries and illnesses.

   For example, it is a reasonable time (when) requirement if the procedure requires employees to report a work-related injury or illness as soon as practicable after the employee realizes that he or she has a work-related injury or illness that should be reported to the employer. However, it is not a reasonable time requirement if the employer has a rigid prompt-reporting requirement that disciplines employees for late reporting when the employee could not have realized that he or she has a work-related injury or illness. The employer's time requirement for reporting an injury or illness must take into account situations in which employees cannot reasonably be expected to discover their injuries or illnesses within a rigid reporting period. For a reporting procedure to be reasonable it must allow for reporting of work-related injuries and illnesses within a reasonable time after the employee has realized that he or she has suffered the kind of work-related injury or illness the employer's procedure requires employees to report.

   It is a reasonable means (how) requirement if the procedure requires employees to report a work-related injury or illness by reasonable means, such as by phone, email, or in person when practicable. However, it is not a reasonable means requirement if the procedure requires the employee to report the injury or illness in person at a location remote from his or her workplace. Similarly, it is not a reasonable means if the procedure requires employees to take unnecessarily cumbersome steps or an excessive number of steps to report a work-related injury or illness. The means in the procedure for reporting must not be unduly burdensome, such that a reasonable employee would be discouraged from reporting the work-related injury or illness.

   The CSHO will attempt to identify employees who did not report past injuries or illnesses because of the employer's unreasonable reporting procedure. However, OSHA may still cite a violation of section 1904.35(b)(1)(i) for an unreasonable procedure even if OSHA does not identify an employee who did not report an illness or injury in the past, as long as OSHA can identify one or more employees who would be deterred or discouraged from reporting future injuries or illnesses because of the employer's procedure. Also, OSHA may cite a violation of Section 1904.35(b)(1)(i) for an unreasonable reporting procedure even if OSHA does not identify an employee who was disciplined for violating the procedure.

   Section 1904.35(b)(1)(ii)

   Inform employees of procedure. This provision is basically the same as the former provision that required employers to tell each employee how to report a work-related injury or illness. The new provision clarifies that the employer must inform each employee of the "procedure" for reporting work-related injuries or illnesses. OSHA may cite for a violation of section 1904.35(b)(1)(ii) when the employer does not inform employees of the procedure. As under the former provision, the rule does not specify how the employer must inform employees. Employers have flexibility to set up systems that are appropriate to their workplace. 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.

   Section 1904.35(b)(1)(iii)

   Inform employees of right to report. This provision requires that employers inform employees that they have the right to report work-related injuries and illnesses and prohibits employers from discharging or in any manner discriminating against any employee for reporting work-related injuries and illnesses. The employer can comply with this provision by posting the OSHA worker rights poster (version OSHA 3165-04R 2015 or later). Alternatively, the employer can comply with this provision by informing employees of the required information by other appropriate means, such as an individual written notice to each employee. The information does not need to be provided in writing.

   Under these Interim Enforcement Procedures, if OSHA determines that the employer has not posted the poster and has not otherwise informed employees of the information required by this provision, the CSHO will provide the employer a copy of the poster. If the employer posts the poster, immediate abatement is accomplished and no citation will be issued. If the employer does not post the poster, a citation may be issued.

   Under these Interim Enforcement Procedures, if the employer declines to post the poster and has not otherwise informed employees of the required information, the violation will be based on the identification of specific employees who have not been informed that they have a right to report work-related injuries and illnesses to the employer and that the employer is prohibited from retaliating against them for reporting.

   1. Enforcement Guidance.
   2. Issuance of Citations.

      OSHA will issue a citation based on its determination that an employer failed to establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.

      An other-than-serious citation of section 1904.35(b)(1)(i) will normally be issued if the employer has failed to establish a reasonable procedure.⁽¹⁾ The gravity-based penalty for this violation is $5,345. If the Area Director determines that it is appropriate to achieve the necessary deterrent effect, the unadjusted penalty may be up to $12,471.

      Six-month date calculation: The citation must be issued within six months from when an unreasonable procedure was in effect.

      Abatement: The employer can abate this violation by establishing a reasonable procedure within the meaning of this provision.

      OSHA will issue a citation based on its determination that an employer failed to inform employees about the procedure to report injuries and illness.

      An other-than-serious citation of section 1904.35(b)(1)(ii) will normally be issued if the employer has failed to inform employees of its procedure. The gravity-based penalty for this violation is $5,345. If the Area Director determines that it is appropriate to achieve the necessary deterrent effect, the unadjusted penalty may be up to $12,471.

      Six-month date calculation: The citation must be issued within six months from when the employer failed to inform an employee of its reporting procedure.

      Abatement: The employer can abate this violation by informing employees of the procedure within the meaning of this provision.

      OSHA will issue a citation based on its determination that the employer failed to inform employees of their right to report work-related injuries and illnesses and/or failed to inform employees that the employer may not retaliate/discriminate against any employee who reports a work-related injury or illness.

      An other-than-serious citation of section 1904.35(b)(1)(iii) will normally be issued if an employer fails to inform each employee of the required information. The gravity-based penalty for this violation is $5,345. If the Area Director determines that it is appropriate to achieve the necessary deterrent effect, the unadjusted penalty may be up to $12,471.

      Six-month date calculation: The citation must be issued within six months from when the employer failed to inform employees of their right to report work-related injuries or illnesses without fear of retaliation.

      Abatement: The employer can abate this violation by implementing a procedure to inform employees of the right to report work-related injuries and illnesses without fear of retaliation. This can be satisfied by posting the OSHA worker rights poster (version OSHA 3165-04R 2015 or later). However, employers are not required to post this version of the poster if they provide the required information through other appropriate means, such as providing a written notice to each individual employee.

      1. Violation of 1904.35 (b)(1)(i)
      2. Violation of 1904.35 (b)(1)(ii)
      3. Violation of 1904.35(b)(1)(iii)
3. Special Interim Enforcement, Inspection, Referral, and Citation Procedures for Violations of 1904.35(b)(1)(iv).

   OSHA will issue a citation under section 1904.35(b)(1)(iv) if the employer has taken an adverse action against an employee for reporting a work-related injury or illness, and if the adverse action took place within the six months before issuance of the citation. To issue a citation under section 1904.35(b)(1)(iv), OSHA must have reasonable cause to believe that a violation occurred—in other words, that an employer retaliated against an employee for reporting a work-related injury or illness. The elements of a violation are:

   Under these Special Interim Procedures, OSHA will only issue a citation for a violation of this provision when OSHA can identify an employee who received an adverse action because he or she reported or attempted to report a work-related injury or illness.

   Calculation of the six-month date for the issuance of a citation will run from the date on which the employer took the adverse action against the employee for reporting a work-related injury or illness.

   NOTE: Unlike Section 11(c), which requires the complainant to notify OSHA within 30 days of the adverse action, a potential violation of section 1904.35(b)(1)(iv) does not require the complainant to inform OSHA within 30 days.

   The decision to open an inspection of a potential violation of section 1904.35(b)(1)(iv) and to make the administrative referral to the WPP to conduct the investigation into the merits of the complaint may involve receipt of complaints from several sources: current and former employees and their representatives, and other non-aggrieved employees. Each is discussed below:

   During the opening conference, the CSHO will follow established procedure and present a copy of the OSHA 7 on which the complainant's name has been withheld. The CSHO will explain that the investigation of the retaliation complaint will be handled by a Whistleblower (WB) Investigator and that shortly after the opening conference a WB Investigator will contact a representative of the company. The CSHO will identify the name of the company representative and his or her contact information. There may be occasions when, based on discussions between the Area Office and the WPP, the participation of the WPP may be appropriate at the opening conference.

   The CSHO will conduct a review of records. In addition to the OSHA logs for the past 5 years, the CSHO will obtain any documentation related to the reported injury that is the basis of the retaliation/discrimination allegation, and any other document relevant to the complaint of retaliation.

   After the inspection, within one business day when practicable, the Area Office will notify the WPP that the inspection has been opened and will provide copies of the OSHA 300 logs and any other relevant documentation. The Area Office will identify the Point of Contact in the Area Office for future coordination, who will be the contact for a request from the WPP to obtain information that may be available from the employer onsite.

   The WPP will conduct an investigation to determine whether the facts are sufficient to support an issuance of a citation under section 1904.35(b)(1)(iv). The WPP will follow its Interim Investigation Procedures for gathering evidence, analyzing the merits of the allegation, reaching a recommendation regarding the determination of retaliation or discrimination, and recommending the appropriate remedies, including back wages when appropriate. It is not intended that the investigation will be a joint investigation.

   When the WPP investigation has been concluded, regardless of the recommended determination, the WPP will forward a Memorandum of Investigation (MOI), along with the evidentiary materials, via e-mail or hard copy, to the Area Office. The Area Office will incorporate the forwarded materials into the enforcement case file and maintain the records in accordance with normal procedures.

   If the investigation leads to a recommendation not to issue a citation under 1904.35(b)(1)(iv), the WPP will notify the Area Office via the MOI that "The WPP does not recommend issuing a citation under section 1904.35(b)(1)(iv)." The Area Office will take the necessary steps to record this finding in OIS. If the WPP continues to investigate the matter under section 11(c), the notification will also state, "However, this recommendation should not be viewed or interpreted to mean that the WPP has made any determination regarding the merit of any corresponding section 11(c) matter. The WPP continues to investigate this matter under section 11(c)."

   If the WPP does recommend issuing a citation under 1904.35(b)(1)(iv) based on a finding that reasonable cause exists to believe that section 1904.35(b)(1)(iv) was violated, the WPP will forward the MOI to the Area Office for inclusion in the enforcement file and for use in the issuance of citations. The MOI will include recommendations for remedies for the aggrieved employee, which could include back wages, removal of disciplinary actions, and recommendations for abatement of any underlying policy or procedure that is related to the merit determination.

   As stated below, the Area Office will assess a penalty for the citation.

   After receipt of the MOI from the WPP, and consultation as necessary with the WPP, the Area Office will hold a closing conference with the employer. This closing conference can be done by telephone.

   If the AO determines, after consultation with the WPP, that a citation should be issued, the AO will prepare and issue the citation. The AO is responsible for ensuring the necessary information is entered into OIS and drafting/issuing any citations, with input from the WPP.

   An other-than-serious citation of Section 1904.35(b)(1)(iv) will normally be issued if an employer discharges or in any manner discriminates against any employee for reporting a work-related injury or illness. The gravity-based penalty for this violation will normally be $5,345. If the Area Director determines that it is appropriate to achieve the necessary deterrent effect, the unadjusted penalty may be up to $12,471.

   Abatement: The citation must include remedies for the aggrieved employee, such as back wages, removal of disciplinary action, reinstatement of lost time and wages, etc., where appropriate. This abatement will be based on the recommendations received from the WPP. Also, the citation must include the means for abatement of the underlying policy or procedure that is related to the merit determination.

   If an employer requests an Informal Conference regarding the citation issued for a violation of 1904.35(b)(1)(iv), the Area Office will consult with the WPP regarding participation in the conference. Participation can be in person, by telephone, or video conference. Preparation for the informal conference should include a discussion on settlement parameters. Among other things, the Area Office/WPP should be prepared to discuss remedies including back wages and other make-whole remedies for the aggrieved employee. As necessary, consultation with the RSOL may be sought.

   The Area Office/WPP will consult with the aggrieved employee before the informal conference to advise him or her that the employer has requested the conference and to discuss settlement parameters. The Area Office/WPP will tell the employee that, if settlement within the discussed parameters seems likely, the Area Director/WPP will contact the employee to discuss before finalizing the settlement terms. If a settlement is reached, the Area Office, in consultation with the WPP, will prepare the Informal Settlement Agreement. (See Appendix C, Template – Informal Settlement Agreement.)

   1. Elements of the violation.
      1. The employee reported a work-related injury or illness;
      
      
      2. The employer took adverse action⁽²⁾ against the employee (that is, action that would deter a reasonable employee from accurately reporting a work-related injury or illness); and
      
      
      3. The employer took the adverse action because the employee reported a work-related injury or illness.
      
      
      
       
      4.  
   2. Inspection and Referral Guidance.

      The following is an example of a summary:

      On [date] [name of employee] reported that he was injured or was ill to [name]. On [date], employer [name] told [name of employee] that [he or she was disciplined], [was denied benefit] [describe any other adverse action.]

      A citation must be issued by [DATE].

      When the Area Office determines an inspection is warranted, the Area Office will follow the protocols currently in place for referral of a retaliation complaint to the WPP. The Area Office will send the completed OSHA 7 to the WPP and identify the referral as a potential violation of 1904.35(b)(1)(iv). (See C., Opening Conference, below for further notification to the WPP after opening conference.)

      The above information will be documented on the OSHA 7 and provided to the WPP for a determination as to whether a reasonable basis exists for believing that a violation of 1904.35(b)(1)(iv) could have occurred. The information will be provided to the WPP following current procedure for referral of a whistleblower complaint in each Region. After the WPP has received the information (within two days, if possible), the WPP will make such a determination and, if appropriate, refer to the Area Office for opening an inspection pursuant to the FOM, Chapter 9, Section I.C.8. Within 5 days of receipt of the referral from the WPP, the Area Office will open an inspection. If the WPP determination is that no reasonable basis exists for believing a violation of section 1904.35(b)(1)(iv) could have occurred, the Area Office will not open an inspection and will inform the former employee.

      OSHA anticipates that the Area Office may receive an allegation of potential non-compliance with section 1904.35(b)(1)(iv) from an individual, or entity, other than someone who claims to have been retaliated against by the employer based on the report of a work-related injury or illness. In such situations, the individual/entity making the allegation may not have the identity/name of an individual who may have been subject to the retaliation. OSHA will inquire as to whether the non-aggrieved employee can obtain the identity of an aggrieved employee. If that individual is identified the complaint will be handled as outlined above, based on the status as a current or former employee. If the identity/name of an individual cannot be determined, OSHA will treat the complaint as a non-formal complaint and follow current FOM procedures for a phone/fax. A referral to the WPP may be appropriate dependent on the outcome of the phone/fax.

      If, during the conduct of a safety and health inspection, the CSHO is informed of an allegation related to a potential violation of the anti-retaliation provision at section 1904.35(b)(1)(iv), the CSHO will handle each complaint based on these Special Interim Procedures depending on whether it is a complaint from a current or former employee.

      There may be occasions when the WPP receives directly from a complainant an allegation of retaliation because he or she reported a work-related injury or illness and the allegation has not been filed with the Area Office. Pursuant to the FOM, Chapter 9, Section I.C.8, the WPP will refer the complaint to the Area Office for a determination about whether an inspection is warranted. The Area Office will handle each case based on these Special Interim Procedures, depending on whether it is a complaint from a current or former employee.

      1. Complaint from current employee.

         When the Area Office receives an allegation from a current employee (or representative) that he or she reported a work-related injury or illness, and that as a result he or she was disciplined, denied a benefit, or otherwise suffered an adverse action, the Area Office will follow current procedure in the FOM to treat the allegation as a formal complaint. Information documented on the OSHA 7 will serve as a basis for entry into OIS by the Area Office and referral of the complaint to the WPP. Information documented on the OSHA 7 for referral must include the following:

         • Name of employee making the allegation, including all contact information, home address, phone numbers;
         • Name and address of employer;
         • Report of injury or illness: What did the employee report; describe injury or illness that employee reported; how did the injury occur; when (date) did employee report, or attempt to report, the injury or illness; name of person to whom employee reported injury or illness;
         • Adverse Action: What action did the employer take as a result of the report of the injury or illness; describe in detail the action; when (date) did the employer take that action (for purposes of calculation of the six-month statute of limitations it is important to have as exact a date as possible of when the adverse action occurred);
         • Statute of limitations: Identification of the date by which a citation must be issued.
      2. Complaint from former employee.

         OSHA anticipates that the Area Office may receive complaints from former employees, or representatives, alleging that a former employee was terminated or forced to quit because he or she reported a work-related injury or illness. The complaint will be treated as a potential 11(c) complaint and will be referred to the WPP consistent with the current procedure in each Region.

         Additionally, the complaint will be treated as a potential violation of 1904.35(b)(1)(iv). The Area Office will attempt to obtain the following information:

         • Name of employee making the allegation, including all contact information, home address, phone numbers;
         • Name and address of employer;
         • Reason for separation from job: When (date) was employee separated from job (for purposes of calculation of the six-month statute of limitations it is important to have as an exact date as possible of when the employee quit or was terminate); was the employee fired; what reason did the employer give the employee for the termination; why does the employee think he or she was terminated; if the employee left the employment what was the reason.
         • Report of injury or illness: What did the employee report; describe injury or illness that employee reported; how did the injury occur; when (date) did employee report the injury or illness; name of person to whom employee reported injury or illness.
      3. Complaint from a non-aggrieved employee.
      4. Complaint provided to CSHO while conducting on-site safety and health inspection.
      5. Referral from the WPP.
   3. Opening Conference.
   4. Interim Investigation Procedures Following Referral from the Area Office to the WPP.
   5. Conclusion of the WPP Investigation of Potential Violation of Section 1904.35(b)(1)(iv).
   6. Issuance of Citation and Penalty Policy.
   7. Informal Conference/Settlement.
4. Data Collection and Input into OIS.
5. Federal Agencies.
6. Outreach.
   • OSHA Poster: http://www.osha.gov/Publications/poster.html
   • Recordkeeping Home Page: http://www.osha.gov/recordkeeping/index.html
   • Recordkeeping Tutorial: http://www.osha.gov/recordkeeping/tutorial.html
   1. Summary of New Requirements of Section 1904.35
   2. Interim Investigation Procedures for Section 29 C.F.R. 1904.35(b)(1)(iv)
   3. Template – Informal Settlement Agreement

APPENDIX A
Summary of New Requirements of Section 1904.35

Summary of New Requirements of Section 1904.35: Employee Involvement and Prohibition Against Discrimination.

One of the goals of the final rule is to ensure the completeness and accuracy of injury and illness data collected by employers and submitted to OSHA. The final rule is intended to promote accurate recording of work-related injuries and illnesses by preventing the under-recording that arises when workers are discouraged from reporting these occurrences. The rule establishes an additional mechanism for OSHA to enforce the existing prohibition on employer retaliation against employees. Therefore, Section 1904.35 contains new requirements intended to promote complete and accurate reporting of work-related injuries and illnesses. Section 1904.35(a) Basic requirement– retains the requirement that an employer must involve employees and their representatives in the recordkeeping system by informing each employee how to report an illness or injury and providing access to employees and employee representatives of the employer's injury and illness records.

The new rule clarifies that the injuries and illnesses referred to in 1904.35(a)(1) are work- related injuries and illness. Also, the new rule clarifies that the employer, when informing each employee how to report a work related injury or illness, must provide specific information contained in new section (b)(1)(iii).

Section 1904.35(b)(1) Implementation – retains the requirement that an employer must set up a way for employees to report work related injuries and illnesses. The new rule clarifies that an employer "must establish a reasonable procedure for employees to report work-related injuries and illnesses 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."

Section 1904.35(b)(ii) maintains the requirement that the employer must tell each employee how to report a work-related injury or illness but now requires that each employee be informed of the "procedure" for reporting a work-related injury or illness.

Section 1904.35(b)(1)(iii) adds a new provision requiring employers to "inform each employee that employees have the right to report work-related injuries and illnesses"and prohibiting employers"from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses."

Section 1904.35(b)(1)(iv) is a new provision stating that employers "must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness." While this provision is new in the recordkeeping regulation, this provision is consistent with the existing prohibition in Section 11(c) of the OSH Act, which prohibits employers from retaliating against employees for reporting work-related injuries and illnesses.

The new Rule also provides:

1904.36 Prohibition against discrimination

In addition to 1904.35, section 11(c) of the OSH Act also prohibits you from discriminating against an employee for reporting a work related fatality, injury, or illness. That provision of the Act also protects the employee who files a safety and health complaint, asks for access to the part 1904 records, or otherwise exercises any rights afforded by the OSH Act.

This provision is not citable as it repeats the current prohibition addressed in Section 11(c) of the OSH Act.

APPENDIX B
Interim Investigation Procedures for Section 29 C.F.R. 1904.35(b)(1)(iv)
(See OSHA Memorandum, November 10, 2016)

APPENDIX C
Template - Informal Settlement Agreement

NOTE: The AO can use its standard ISA. This template is intended to include some of the provisions that may be included as abatement of the 1904.35(b)(1)(iv) citation. The AO will consult with the WPP regarding the terms of the abatement and it is strongly recommended that RSOL be consulted before execution of these agreements.

INFORMAL SETTLEMENT AGREEMENT

The undersigned Employer and the undersigned Occupational Safety and Health Administration (OSHA), in settlement of the above citation(s) and penalties which were issued on *****, 20***, hereby agree as follows:

1. The Employer accepts the Citation and Notification of Penalties as issued on ******. [or Employer and OSHA agree to amend the Citation and Notification of Penalties as below:]


2. The Employer agrees to pay the penalty of $XXXX within 10 working days of the date this Informal Settlement Agreement is signed. Payment will be made electronically at www.pay.gov or with a check or money order payable to "DOL-OSHA", and mailed to U.S. Dept. of Labor — OSHA, [Area Office Address].


3. The Employer agrees to fully abate the citation by taking the following actions:
   1. The Employer agrees to pay [the name of the employee] $______in back pay (less normal payroll deductions). The Employer shall submit appropriate documentation to the Social Security Administration allocating back pay to the appropriate calendar quarters. [OR Employer agrees to pay [the employee's name] a lump sum of $____.] Any check shall be made payable to [the name of the employee] and mailed to U.S. Dept. of Labor – OSHA, [Area Office Address];
   
   
   2. The Employer shall expunge any references from [the name of the employee]'s personnel records relating to the adverse action and shall not make any references relating to the adverse action in any future requests for employment references;
   
   
   3. Should any third parties, including prospective employers, inquire as to the employment of [the employee's name], the Employer agrees to refrain from any mention of [the employee's name]'s protected activity. The Employer agrees that nothing will be said or conveyed to any third party that could be construed as damaging the name, character, or employment of [the employee's name];
   
   
   4. The Employer agrees to change its incentive program by ********;
   
   
   5. The Employer agrees to change its drug testing program by ******;
   
   
   6. The Employer agrees to change its disciplinary program by ******.
   
   
   7. The Employer agrees that the abatement actions contained in this paragraph will be completed by *******
   
   
   
    
   8.  
4. The Employer, by signing this informal settlement agreement, waives its rights to contest the above citation(s) and penalties [as amended in paragraph * of this agreement]. Further the Employer agrees that the terms of this Informal Settlement Agreement are incorporated into the citation.


5. OSHA and the Employer agree that the citation is amended to include the terms of this Informal Settlement Agreement.


6. The Employer agrees to immediately post a copy of this Informal Settlement Agreement in a prominent place at or near the location of the violation(s) referred to in paragraph 1 above. This Informal Settlement Agreement must remain posted until the violations cited have been corrected, or for three working days (excluding weekends and federal holidays), whichever is longer.


7. Pursuant to 29 C.F.R. 1903.19(c), the Employer will submit abatement verification to the U.S. Dept. of Labor — OSHA, [Area Office Address]; within ten days of the agreed upon abatement date for each action identified in this Informal Settlement Agreement. The abatement verification shall include the date and method of abatement and a statement that affected employees and their representatives have been informed of the abatement.


8. If a third party submits a Freedom of Information Act ("FOIA") request, OSHA will disclose settlement agreements in accordance with the FOIA, unless one of the FOIA exemptions applies;


9. Nothing in this Informal Settlement Agreement alters in any manner the rights afforded employees under the OSH Act.



 
10.  

¹ Under the FOM, all 1904 citations are issued as other-than-serious.

² Adverse action could include a range of activities, including those listed in the Interim Investigation Procedures attached as Appendix B and the OSHA Whistleblower Investigations Manual, CPL 02-03-007 (1/28/2016).