# Employee injury reporting and retaliation: 29 CFR 1904.35 and OSH Act section 11(c)

> 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.

Source: https://incidentkit.ai/compliance/osha/employee-reporting-and-retaliation · Updated Oct 5, 2026

## Key facts

- **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

- **Citation:** 29 CFR 1904.35 and OSH Act section 11(c)
- **Authority:** OSHA
- **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.

*Employee involvement duties in 29 CFR 1904.35*

| 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.

*OSHA's stated positions in the 2018 memorandum*

| 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.

> **Which provisions can be cited** OSHA's inspector directive says 1904.36 is informational only, not a citable provision. 1904.35(b)(1)(iv) is citable. Section 11(c) is enforced through OSHA's whistleblower process.

## 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](https://incidentkit.ai/blog/how-to-get-staff-to-report-near-misses) and the [near-miss reporting and safety culture guide](https://incidentkit.ai/guides/near-miss-reporting-and-safety-culture).

## 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.

## What the rule asks for, and how IncidentKit supports it

| Requirement | 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. |

## 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)](https://www.ecfr.gov/current/title-29/section-1904.35)
- [OSHA: OSH Act section 11, including 11(c) (29 U.S.C. 660)](https://www.osha.gov/laws-regs/oshact/section_11)
- [OSHA: Memorandum, Clarification of OSHA's position on workplace safety incentive programs and post-incident drug testing (2018-10-11)](https://www.osha.gov/laws-regs/standardinterpretations/2018-10-11)
- [OSHA: Part 1904 Recordkeeping Policies and Procedures Directive, CPL 02-00-172](https://www.osha.gov/sites/default/files/enforcement/directives/CPL-02-00-172.pdf)
- [OSHA: Online whistleblower complaint form and filing instructions](https://www.osha.gov/whistleblower/WBComplaint)
- [OSHA: FAQ 35-1, informing employees how to report](https://www.osha.gov/faq/35-1)

## Related

- [OSHA recordkeeping requirements: 29 CFR 1904 explained](https://incidentkit.ai/compliance/osha/recordkeeping-overview)
- [OSHA 301 incident report: the 18 fields and deadlines](https://incidentkit.ai/compliance/osha/osha-301-incident-report)
- [Near-miss reporting and safety culture: a practical guide](https://incidentkit.ai/guides/near-miss-reporting-and-safety-culture)
- [How to get staff to report near misses (and keep doing it)](https://incidentkit.ai/blog/how-to-get-staff-to-report-near-misses)
- [Near-Miss Reporting: How to Build a Program That Works](https://incidentkit.ai/use-cases/near-miss-reporting)
- [Just culture: definition and meaning](https://incidentkit.ai/glossary/just-culture)
- [Workplace Injury Reporting: Steps, Deadlines, Records](https://incidentkit.ai/use-cases/workplace-injury-reporting)