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.
I. Overview of New Regulations and Procedures
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.
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