By Allan Muir

Many employers have policies that require the “prompt” or “immediate” reporting of accidents and injuries.  They exist so employers can quickly address hazardous work conditions, ensure prompt medical and case management in cases that involve work injuries, and in some instances discourage the reporting of off the job injuries as work related events.

The Maine Workers’ Compensation Board appears to have invalidated all such policies.  In a July 31 reversal of a decision by Hearing Officer Glen Goodnough, the Board’s majority held that employers cannot require employees to report work-related injuries any sooner than the 90 day period in the Act.

In Shaver v. Poland Spring, the Board held by a 4-3 vote that Poland Spring unlawfully discriminated against an employee by terminating him when he failed to promptly report a slip and fall accident that occurred the previous day.  The Board reached this conclusion even though the Hearing Officer upheld the termination, finding that Poland Spring did not have any sort of discriminatory motive and was instead relying on a facially neutral policy that it had adopted for legitimate business purposes. 

This is the Board’s first decision since 2004, when the Legislature made the Board’s Executive Director a gubernatorial appointee with the authority to break ties between the Board’s labor and management sides.  In this case, Executive Director Paul Dionne sided with the labor members of the Board. 

The majority ignored three recent cases in which the Law Court held that discrimination requires proof that the employer was motivated by the assertion of a claim – a motivation the hearing officer expressly found not to exist in this case.  Thus, it appears that the decision is contrary to established law.  The employee may have to convince the Law Court that injury reporting policies are somehow not subject to this requirement, as Poland Spring has filed an appeal with the Court.  We should know in a few months if the Court is going to review the case.  If it accepts review, it will likely be another six months or more before the Court issues it decision. 

In the meantime, employers should be wary about applying reporting policies.  Although it is perhaps too early to begin rewriting your reporting policies, employers should bear in mind that an employee who is disciplined under such a policy may take steps either before the Board or through a grievance process to remove a warning or obtain reinstatement in cases involving termination. 

We will keep you updated as things play out at the Court.