Employee injury reporting and retaliation: 29 CFR 1904.35 and OSH Act section 11(c)
Short answer
Employers must give workers a reasonable way to report injuries and illnesses, promptly and accurately. Every worker must be told how to use it, and that reporting is safe from retaliation. A way to report is not reasonable if it would deter a reasonable employee. Section 11(c) adds a 30-day window to file a complaint.
- Rules
- 29 CFR 1904.35, 1904.36 (informational) and OSH Act section 11(c)
- Test
- Not reasonable if it would deter a reasonable employee from reporting accurately
- Must tell employees
- How to report, that they may, and that retaliation is prohibited
- 11(c) deadline
- Complaint within 30 days after the violation occurs
- OSHA determination
- Within 90 days of receiving an 11(c) complaint
- 2018 memorandum
- Incentive programs and post-incident drug testing are not banned outright
- Inspector directive
- CPL 02-00-172, effective 2025-01-13
Applies to: Employers required to keep Part 1904 records (1904.35) · All employers covered by the OSH Act (section 11(c)) · EHS, HR and operations leaders who design reporting procedures, incentives and post-incident practices
What must an employer's injury reporting system do?
An employer must offer a reasonable way to report. It must tell every worker about it and their rights. It must never retaliate.
| Duty | Paragraph |
|---|---|
| Offer a reasonable way to report work-related injuries and illnesses promptly and accurately | (b)(1)(i) |
| Make sure it would not deter or discourage a reasonable employee from reporting accurately | (b)(1)(i) |
| Tell each worker how to report | (a)(1), (b)(1)(ii) |
| Tell each worker they may report, and that discharge or discrimination for it is prohibited | (b)(1)(iii) |
| Never discharge or discriminate against a worker for reporting | (b)(1)(iv) |
| Give workers and their representatives access to the injury and illness records | (b)(2) |
OSHA names no method. Its FAQ says workforce size, language, literacy, culture and other factors decide what works (FAQ 35-1).
What must a reporting system not do?
Four things.
- Deter or discourage accurate reporting. This is the test for an unreasonable system.
- Hide the system or the rights. Workers must know how to report and that retaliation is banned.
- Penalize the report. Discharge or discrimination for reporting is prohibited. Section 11(c) also protects other rights under the Act.
- Let incentives suppress reports. Inspectors must document policies that may discourage reporting. OSHA's example is an award tied to recorded injury counts (CPL 02-00-172).
How does OSHA treat incentive programs and drug testing?
OSHA's October 11, 2018 memorandum says 1904.35(b)(1)(iv) does not ban safety incentive programs or post-incident drug testing. The current recordkeeping directive cites it. The rule is broken only if the action punishes a worker for reporting.
| Practice | OSHA's position |
|---|---|
| Rewards for reporting near misses or hazards | Always allowed |
| A rate-based incentive, such as a prize for an injury-free month | Allowed if it does not discourage reporting |
| Withholding a prize or bonus because an injury was reported | No citation under 1904.35(b)(1)(iv) if adequate precautions let workers feel free to report. Saying reporting is encouraged may not be enough |
| Precautions that can balance a rate-based program | Rewards for finding unsafe conditions; training on reporting rights; a way to evaluate willingness to report |
| Random testing; testing unrelated to an injury report; testing required by workers' compensation law or other federal law | Allowed |
| Post-incident testing to find the root cause | Allowed; test everyone whose conduct could have contributed |
| Firing or disciplining someone for reporting an injury | Prohibited |
What does section 11(c) add?
Section 11(c) of the OSH Act (29 U.S.C. 660(c)) bars retaliation against workers. It protects filing a complaint, starting or testifying in a proceeding, and using any right the Act gives. The recordkeeping rule adds three more: reporting a fatality, injury or illness; filing a safety and health complaint; and asking for Part 1904 records (1904.36).
- Deadline: file with the Secretary of Labor within 30 days after the violation occurs. OSHA notes its whistleblower laws set deadlines from 30 to 180 days.
- Process: if the Secretary finds a violation, the Secretary sues in federal district court. Relief can include rehiring or reinstatement with back pay.
- Timing: the Secretary must notify the complainant of the determination within 90 days of receiving the complaint.
- Filing: oral or written, never anonymous. It must allege protected activity, employer knowledge and an adverse action. It must also allege that the activity motivated or contributed to the action.
How should a reporting system be designed?
These are practice tips, not OSHA rules. They follow the rule's test: would this deter a reasonable employee?
- Let workers report on any shift, from a phone, with no sign-off first.
- Show the right to report and the no-retaliation line where people report.
- Acknowledge each report and show what happened next.
- Keep reporting separate from discipline. Record why anyone is disciplined.
- Watch reporting patterns, not just injury rates. A site where reports suddenly fall needs a look.
- Offer reporting in your workforce's languages. Language support in IncidentKit is rolling out.
For the culture side, read how to get staff to report near misses and the near-miss reporting and safety culture guide.
What evidence shows the system works?
Keep proof of what workers were told, what they reported and how you responded.
- The written procedure, and when and how each worker was told (onboarding, posting, training).
- Reports as first submitted, with a log of who edited what and when.
- Incentive program rules and their precautions.
- Your response to each complaint or concern, with dates.
How IncidentKit supports this requirement
| What the rule asks for | Where it lives in IncidentKit |
|---|---|
| A reasonable procedure for prompt, accurate reporting ((b)(1)(i)) | Quick report takes three fields from a phone and works offline. Email-to-incident gives each site its own address. Voice reporting and other languages are rolling out. |
| Tell each employee how to report and about their rights ((b)(1)(ii), (iii)) | Post a QR code per site at the dock door, break room or nurses' station. Put your right-to-report wording beside it. |
| Do not discriminate for reporting; keep evidence | Role-based access limits who can view and edit a report. The audit trail shows who changed what and when. |
| Notice practices that discourage reporting | Analytics cluster incidents by location, shift, equipment and cause. Roll-ups compare sites, so a quiet site stands out. |
| Show that reporting leads to a fix | Routing sends each report to a named owner. Corrective actions close only when verified. |
Product parts involved: QR and quick report, Incident reporting, Email-to-incident, Lauren, the AI assistant, Audit trail, Analytics, Corrective actions (CAPA). Capabilities marked “rolling out” are being released in stages; see the changelog.
Frequently asked questions
Can we run an injury-free-days incentive?
Yes, if it does not discourage reporting. OSHA suggests balancing it with rewards for finding hazards, training on reporting rights, and a way to evaluate willingness to report.
How long does an employee have to file a section 11(c) complaint?
Thirty days after the violation occurs, filed with the Secretary of Labor. Other whistleblower laws OSHA administers allow 30 to 180 days, so file promptly.
Can we drug test after an injury?
Often yes. OSHA's 2018 memorandum says most post-incident drug testing is permissible, including to evaluate the root cause. Test everyone whose conduct could have contributed. Testing used to penalize a report would violate the rule.
Does reporting through a supervisor satisfy the rule?
It can, but the rule names no method. The route must not deter or discourage a reasonable employee. A supervisor-only route workers avoid out of fear could fail.
What counts as retaliation?
Discharging or in any manner discriminating against a worker for reporting an injury or illness, or for using other OSH Act rights. A complaint must allege protected activity, employer knowledge, an adverse action, and that the activity motivated or contributed to the action.
Sources
- eCFR: 29 CFR 1904.35, Employee involvement; 1904.36, Prohibition against discrimination (current through 2026-10-01)
- OSHA: OSH Act section 11, including 11(c) (29 U.S.C. 660)
- OSHA: Memorandum, Clarification of OSHA's position on workplace safety incentive programs and post-incident drug testing (2018-10-11)
- OSHA: Part 1904 Recordkeeping Policies and Procedures Directive, CPL 02-00-172
- OSHA: Online whistleblower complaint form and filing instructions
- OSHA: FAQ 35-1, informing employees how to report
Reviewed against the sources above on Oct 5, 2026. Rules change: confirm current requirements with the issuing body or your counsel before relying on any summary.
Map this requirement to your records.
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