Despite legal challenges and controversy, the Occupational Health and Safety Administration (OSHA) will begin enforcing its new anti-retaliation and anti-deterrence regulations December 1 of 2016. The regulations became effective as of August 10, 2016, but OSHA has delayed enforcement twice in order to address members of the regulated community who found the provisions unclear and overwhelming.
To that end, OSHA recently issued guidance addressing some common questions regarding the new provisions. Although the guidance is not enforceable as law and individual OSHA inspectors will have considerable discretion to investigate employer actions that OSHA does not generally regard as against regulations, OSHA’s guidance does at least offer employers some clarity as to the agency’s aims and where they will focus their enforcement efforts. Primarily, OSHA’s emphasis is on eliminating procedures and policies which “might deter or discourage” employees from accurately reporting workplace injury or illness, and “[improving] employee and employer understanding of their rights and responsibilities” in regards to reporting.
Many employers found the requirement that employers establish “reasonable” procedures for employees to report workplace injuries to be confusing, as the rule does not explicitly define what is “reasonable.” In response, OSHA explained that the provision is deliberately non-prescriptive so as to allow employers to establish their own procedures.
When shaping these procedures, employers should try to avoid requirements which may make completing a report overly burdensome (such as requiring employees to travel a significant distance) or complex (such as requiring employees to see multiple managers or complete an excessive number of steps).Employers should also “reasonably” account for the employee’s circumstances and ability to report. For example, an employee who is hospitalized may not be able to file a report immediately or in person, so “a procedure that requires immediate reporting without accounting for these circumstances would not be reasonable.”
Employers also expressed concern over the final rule’s anti-retaliation provision, which many interpreted as prohibiting post-incident drug testing and popular incentive programs. According to OSHA’s guidelines, drug testing policies are still allowed under certain circumstances, such as to remain compliant with state worker’s compensation law or other insurance requirements. Drug testing is also allowed if there is “a reasonable possibility that drug use by the reporting employee could have contributed to the reported injury or illness.” However, drug testing policies may violate the rule if they can be seen as retaliatory or as an effort to deter reporting, such as policies which require everyone involved in a workplace accident (including “innocent bystanders” whose impairment could not have been a factor in an incident) to undergo testing.
OSHA also reminds employers that currently-available drug tests “are generally unable to establish a relationship between impairment and drug use” for substances other than alcohol, meaning that testing for other drugs may be seen as “unreasonable” in some circumstances because the test “will not necessarily indicate whether drug use played a role in the incident.”
As regards incentive programs, OSHA’s guidance specifies that they should “encourage safe work practices” rather than discourage reporting. To that end, if an employer sponsors a program in which employees earn a bonus each month there are no reported injuries, withdrawing the bonus after an employee reports an illness or injury would be seen as retaliatory. The program overall might also be seen as an effort to discourage employees from reporting injuries, since an employee might not want to report for fear of losing money or denying money to their coworkers.
However, if an employer sponsors a program in which employees earn a bonus each month for complying with safety regulations, the employer would not be in violation for withdrawing the bonus if an employee did not follow proper procedure that month, so long as the bonus is withdrawn regardless of whether or not the injury is reported.
OSHA’s final rule also requires employers to inform employees that they have the right to report work-related injuries and illnesses free from retaliation from their employer. The current federal OSHA poster already includes language that fulfills this requirement, as do some posters for states operating under an OSHA state plan. If your state has not yet added an anti-retaliation statement, OSHA clarifies that employers may also fulfill this requirement by issuing a written or e-mail notice to each employee.