5.3 A reporting procedure that does not deter

1 The duty, in three parts

1904.35(a) opens by saying that employees and their representatives must be involved in the recordkeeping system, and (b)(1) sets out what that means in practice:

• (i) Establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately — and: “A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”
• (ii) Inform each employee of that procedure.
• (iii) Inform each employee that they have the right to report work-related injuries and illnesses, and that employers are prohibited from discharging or discriminating against employees for reporting.
• (iv) Do not discharge or in any manner discriminate against any employee for reporting.

1904.36 adds the rest of the protection: section 11(c) of the OSH Act also prohibits discrimination against an employee for reporting a work-related fatality, injury or illness, and protects the employee who files a safety and health complaint, asks for access to the Part 1904 records, or otherwise exercises any right under the Act.

2 What makes a procedure unreasonable

The rule does not list unreasonable procedures; it gives a test, and the test is about effect rather than intent. Would a reasonable employee be deterred? Four common arrangements fail it.

OSHA's Recommended Practices for Safety and Health Programs is explicit about the last two: participation is suppressed where workers fear retaliation, where investigations focus on blaming individuals rather than the underlying conditions, and where reporting an incident could jeopardize an incentive-based prize, reward or bonus. It adds that mandatory post-incident drug testing — sometimes required by law or by an insurer — can also suppress reporting, and that incentive programs should be designed so they do not discourage it.

3 Designing an incentive that does not backfire

The problem with an injury-rate bonus is structural rather than moral: it pays people for an outcome they only partly control, and gives them a much easier way to achieve it than preventing injuries. The alternative is to reward the activity you actually want more of.

1. 1
   Recognize hazard reports and close calls filed — the more the better, which inverts the incentive.
2. 2
   Recognize corrective actions completed and verified, not actions opened.
3. 3
   Recognize participation: people who take part in inspections, investigations and job hazard analyses.
4. 4
   Keep injury rates out of individual and crew bonus formulas entirely.
5. 5
   If a rate has to appear in a management scorecard, put reporting volume and action closure next to it.

4 Near misses: the reports you get for free

OSHA's guide defines a close call as “an incident that could have caused serious injury or illness but did not”, and strongly encourages employers to investigate them. Nothing about a close call reaches the 300 Log, because no recording criterion is met — which is precisely why it is worth collecting separately. It is the only information you get about a hazard before it costs anything.

The recommended practices ask for four things around it: a process for workers to report injuries, illnesses, close calls, hazards and other concerns with a prompt response; an option for anonymous reporting to reduce fear of reprisal; reporting back to workers routinely and frequently about the action taken; and empowering all workers to initiate or request a temporary suspension of any work activity they believe to be unsafe.

Rank what comes in on potential, not on outcome. A dropped tool from the second level and the same tool from the eighth floor are one hazard with two consequences, and only one of them is worth a full investigation.

5 Silence is the failure mode

Programs rarely die from retaliation. They die from no answer. A worker who files a report and hears nothing has learned that the form goes into a drawer, and that lesson spreads faster than any policy.

The mechanics are small: a line on the near miss form for feedback given to the reporter; the crew meeting opening with what happened to last week's items; a note on the board when something gets fixed. None of it is required by any standard. All of it decides whether the rest of this course has anything to work with.

6 Telling people their rights, in practice

1904.35(b)(1)(ii) and (iii) require you to inform each employee of the reporting procedure and of the right to report without retaliation. There is no prescribed form of words and no prescribed medium, which means the practical question is where it will actually be heard.

Three places work: the new hire orientation, where it belongs alongside how and where to report an injury and where the first aid supplies are; the posted annual summary in February, which is already about injuries and already on the board; and the crew meeting, once or twice a year, said out loud by the person who runs the crew rather than read from a policy. OSHA's recommended practices also suggest posting the section 11(c) fact sheet, or otherwise making it easily accessible.