On Oct. 11, 2018, OSHA published a memorandum changing its position, taking a significantly more relaxed approach on this anti-retaliation rule. Jourdan Day explains what this means here.
In May 2016, we told you about OSHA’s final rule requiring electronic reporting of illnesses and injuries. This rule requires electronic submission of your OSHA logs, and the information provided will be posted on OSHA’s website. However, in the comments about the new reporting rules OSHA addresses anti-retaliation as it relates to the reporting of illnesses and injuries. The anti-retaliation regulations were originally scheduled to take effect Aug. 10, 2016 and later pushed back to Nov. 1, 2016. A lawsuit has been filed in the Northern District of Texas that could result in the anti-retaliation rules being delayed further or struck down. As a result of this lawsuit, OSHA has again postponed the effective date of the anti-retaliation provisions, which are now set to be effective Dec. 1, 2016. It is likely the court in Texas will act during November on the case. We will follow this lawsuit closely and report any developments or further delays. Importantly, although the lawsuit challenges certain aspects of OSHA’s interpretations of the retaliation aspects of the law, it does not have any impact on the electronic recordkeeping effective dates as we reported them in May.
The retaliation rules
OSHA is concerned with policies and practices that it feels may discourage employees from reporting workplace injuries or illnesses. That is the reason for the new rules regarding retaliation and the related OSHA comments interpreting the rule. Under the new rule, employers are required to:
- Inform employees of their right to report work-related illnesses and injuries
- Have procedures for reporting injuries and illnesses that are reasonable and that do not deter or discourage employees from reporting
- Inform employees of the prohibition on retaliation for reporting
By adopting the anti-retaliation rule, OSHA has opened the door for a new avenue to enforce against retaliation. Currently, Section 11(c) of the Occupational Safety and Health Act prohibits discrimination and retaliation against employees who engage in protected activity, including reporting workplace injuries and illnesses. If an employee feels that he or she has suffered retaliation as a result of reporting, the employee may file a complaint within 30 days of the alleged discrimination or retaliation. OSHA investigates the complaint and if discrimination or retaliation are found OSHA can impose reinstatement and back pay remedies. Under the new rule, OSHA will now also be able cite employers for taking adverse actions against employees for reporting injuries or illnesses, whether or not an employee files a complaint with OSHA. This means employers may get OSHA citations for alleged retaliation and the “abatement” of the alleged violation could be reversal of discipline or even reinstatement and back pay for a terminated employee.
OSHA is taking aim at incentive programs with safety components. For example, some incentive programs include low workplace accident or injury rates as a component for a bonus payment. The commentary to the rule makes clear that OSHA believes these types of safety incentive programs actually deter employees from reporting injuries or illnesses. It is a violation under the new rule for employers to have incentive programs that call for adverse action, including the denial of a benefit, against employees who report injuries or illnesses.
Problematic incentive programs are those that are rate-based, which OSHA believes incentivize employees to not report, for example, all employees who have not been injured are entered in a raffle or a team of employees receives a bonus if no one from the team is injured over a period of time. OSHA believes these may violate the anti-discrimination and anti-retaliation provisions. Further, incentive programs that cause under-reporting could result in under-recording of injuries and illnesses and lead to employer liability for inaccurate recordkeeping. OSHA suggests focusing incentive programs on behavior-based incentives, such as rewards for employees that suggest ways to strengthen safety and health or throwing a party at the conclusion of safety and health training.
Drug testing policies
OSHA finds that employer policies requiring automatic post-injury drug testing are a type of adverse action in violation of the rule. In the commentary, OSHA states that such blanket post-accident drug testing policies likely deter employees from reporting accidents and can be a form of retaliation. While the final rule does not prohibit post-accident drug testing, “drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” Reasonable suspicion is not required, but there should be a “reasonable possibility” that drug use contributed to the injury or illness.
When evaluating the reasonableness of drug testing an employee who reported an injury or illness, OSHA will consider several factors, including whether it was reasonable for the employer to determine drug use may have contributed; whether other employees involved in the incident, who did not report the injury or illness, were tested; and whether the work is hazardous, such that the employer has a “heightened interest” in determining if drug use contributed to the injury or illness.
Drug testing that is done to comply with the requirements of a state or federal law or regulation will not violate the rule. OSHA has indicated that drug testing done in accordance with a state law workers’ compensation program, whether mandatory or voluntary, is acceptable to OSHA. Further, OSHA has stated that employers who require drug testing due to discounted rates from the employer’s private insurance carrier will not be cited for post-accident testing that mirrors the applicable state workers’ compensation law. The implication is that in Ohio, for example, drug testing done as part of the Bureau of Workers Compensation Drug Free Workplace Program will not be considered a violation by OSHA. By contrast, drug testing done because the employer hopes to gain the benefit of a rebuttable presumption in a contested workers compensation claim that substance use caused the accident might not be given a pass by OSHA since it is not testing done as part of a workers compensation program.
The anti-retaliation provisions contained in the final rule clearly demonstrate that OSHA will be increasing its focus on preventing discrimination and retaliation against employees who report injuries and illnesses. Employers will need to review their policies and practices for compliance with the anti-retaliation provisions of OSHA’s final rule. Of course, in light of the likely action by the federal court in Texas during November, Employers should consider delaying any significant changes to their programs until we see if that court enjoins enforcement of some or all of the retaliation interpretations. In the meantime, employers should:
- Inform employees of their right to report workplace injuries and illnesses and that the employer is prohibited from discriminating or retaliating against employees for reporting injuries and illnesses
- Determine whether their safety incentive programs may potentially deter reporting. Any incentive programs that are rate-based will likely need to be altered to behavior-based incentives as OSHA suggests, unless this aspect of the rule is enjoined by the court
- Review their drug testing policies and remove any blanket post-accident testing policies, other than post-accident drug testing required by state or federal laws or regulations, unless this aspect of the rule is enjoined by the court
- Ensure work and safety rules are clearly communicated and applied consistently