At Last! OSHA Issues Guidance “Clarifying” Its Anti-Retaliation Regulations
Labor & Employment Alert 10/27/16 Robert H. Duffy, Fred Gants, Lindsey W. Davis
As we previously reported, on May 11, 2016, OSHA published its final rule codifying its prohibition of retaliation against employees for reporting injuries or illnesses. The new anti-retaliation provisions were to become effective August 12, 2016, then November 1, 2016, and are now scheduled to become effective December 1, 2016. After much anticipation, on October 19, 2016, OSHA published both its Interpretation of the anti-retaliation regulations as well as Questions and Answers related to them.
The Anti-Retaliation Regulations
The anti-retaliation regulation, 29 CFR § 1904.35, requires employers to establish a “reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.” According to OSHA, a procedure is “not reasonable” it if would discourage or deter an employee from reporting a work-related injury or illness. The regulation also prohibits employers from discharging or discriminating against employees for reporting work-related injuries or illnesses.
The Interpretation outlines factors OSHA will look to in determining whether or not an employer’s procedure is “reasonable” as it relates to four specific employer policies: (1) injury and illness reporting requirements; (2) disciplinary programs; (2) incentive programs; and (4) post-incident drug testing programs.
Injury and Illness Reporting Requirements
In recent months, OSHA has issued Section 11(c) whistleblower complaints in instances where an employee was disciplined for failing to “immediately” report his or her work-related injury or illness. The Interpretation states that an employer may require an employee to report a work-related injury or illness “as soon as practicable,” but that it would be unreasonable to require employees to “immediately” report work-related injuries or illnesses. The Interpretation also states that it would be reasonable to require employees to report injuries or illnesses by various means (i.e., phone, email, or in-person), but that it would be unreasonable to require that the reporting be done solely in-person or through excessive or cumbersome steps.
Although employers are permitted to discipline employees for safety rule violations, OSHA prohibits disciplining employees for reporting work-related injuries or illnesses without considering actual misconduct. In determining whether post-incident discipline is retaliatory or not, the Interpretation states that the main factor OSHA will consider is whether other employees who violated the same rule have been treated in the same way – i.e., did the injured employee receive more severe discipline.
Post-Incident Drug Testing Programs
The Interpretation, states that the anti-retaliation regulation does not per se prohibit post-incident drug tests, so long as they are not used to retaliate against an employee for reporting an injury or illness. As such, the Interpretation provides that an employer will not violate the regulation when:
- An individual’s own behavior contributed to the injury (i.e., the individual who drove his forklift into a rack is drug tested);
- The employer drug tests all employees who report work-related injuries to get a 5 percent reduction in its Workers’ Compensation premiums; or
- The employer drug tests all employees who report lost-time injuries because its private insurance carrier offers reduced rates to do so.
On the other hand, an employer will violate the regulation when:
- Drug tests are required for all injuries or illness, including soft-tissue, repetitive injuries (i.e., carpal tunnel) or injuries incurred while being an innocent bystander (i.e., an individual is injured by boxes that fell after an employee driving a forklift ran into a rack); or
- Requiring drug tests based on a collective bargaining agreement that mandates drug testing for all work related injuries or illnesses. NOTE: This is distinct from the instances above, because OSHA supersedes collective bargaining agreements, but not state or federal programs addressing post-injury drug testing.
Finally, in its preamble to OSHA’s anti-retaliation regulations, OSHA stated that for post-incident testing to be reasonable, the test should be designed to identify whether the individual was under the influence at the time of the incident. The Interpretation and Q&As acknowledge that although commercially available tests exist to determine whether an employee was under the influence of alcohol at the time of the incident, tests typically do not exist for substances other than alcohol. Yet, in these situations, OSHA still expects the employer to determine whether drug use could have contributed to the incident.
For years, OSHA has viewed with suspicion employee incentive programs that reward employees for a lack of recordable injuries in the workplace. Although OSHA does not prohibit safety incentive programs, it prohibits the “withholding of benefits” because work-related injuries have been reported. For instance, many employers offer bonuses, pizza parties, or prizes if the workplace has been “recordable free” or had “zero recordable injuries” for a month, quarter, or year. According to the Interpretation, if the employer cancels that bonus, party, or prize when a recordable injury or illness is reported, OSHA will conclude that the incentive program violates the regulation.
On the other hand, the Interpretation states that employers are permitted to condition a benefit based on employees’ compliance with safety rules or participation in safety-related training or activities. For instance, an employer may offer a bonus, party, or prize if employees universally comply with safety rules (i.e., wearing personal protective equipment), attend safety training, or report workplace hazards.
What Should Employers Do?
OSHA’s Interpretation and Q&As related to OSHA’s anti-retaliation regulation may be subject to challenge as the regulations themselves are under scrutiny in the federal courts. Given that the final outcome of that litigation will not likely be known until after the December 1, 2016 “effective date” of the regulations, there is no time like the present for employers to review their injury and illness reporting, discipline, post-incident drug testing, and incentive policies to determine whether they are consistent with OSHA’s guidance and, if not, consider whether to make revisions as necessary to comply with OSHA’s views on these issues.
If you have questions about OSHA’s anti-retaliation provisions and their impact on your business, please contact Kerry M. Mohan at (608) 283-2620/[email protected], Robert H. Duffy at (414) 277-5647/[email protected], Fred Gants at (608) 283-2618/[email protected], Lindsey W. Davis at (414) 277-3073/ [email protected], or your Quarles & Brady LLP attorney.