As we previously reported, in May, 2016, the Occupational Safety and Health Administration (OSHA) announced a final rule changing the way it collects, and employers report, workplace injury and illness data. Under these new regulations, covered employers will be required to submit injury and illness data to OSHA electronically, and some of this data will be made publicly available on the OSHA website. OSHA has explained that its intention in making this data publicly available is to “nudge” employers to increase their focus on safety.
The new OSHA rule also contains an anti-retaliation provision, which prohibits employers from retaliating against employees for reporting work-related injuries or illnesses. This provision requires employers to inform employees of their right to report workplace injuries and illnesses free from retaliation, which can be done by posting the OSHA Job Safety and Health – It’s the Law poster from April 2015 or later (www.osha.gov/Publications/poster.html). Finally, the rule requires that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and must not discourage employees from reporting.
In a guidance document, OSHA clarifies how the anti-retaliation rule applies to disciplinary, incentive and drug-testing programs. First, OSHA warns employers against disciplining an employee who reports a work-related injury or illness under the pretext that the employee violated a work rule. Specifically, OSHA states the discipline will be pre-textual if an employer disciplines an employee who reports an injury for violating a work rule, but does not discipline an employee who violated the same work rule but did not report an injury.
Second, OSHA warns against safety incentive programs that deter employees from reporting injuries or illnesses. For example, a prize associated with no lost-time injuries will be viewed by OSHA as violating the new rule because it discourages reporting. In contrast, incentive programs that reward positive behavior such as participation in safety training, identification of hazards, or reporting near misses are allowed.
Third, OSHA clarifies that post-incident drug testing pursuant to DOT or other federal or state law requirements is allowed as is post-incident drug-testing if there is a reasonable possibility that drug use contributed to the report or illness. OSHA states that if drug use could not have contributed to the injury, post-incident drug testing would be prohibited retaliation.
These anti-retaliation provisions were originally scheduled to take effect in August 2016. In July 2016, several business groups brought suit in a federal district court in Texas challenging these provisions. They argued that the anti-retaliation provisions unlawfully limited employer safety incentive programs and post-incident drug testing programs, and sought an injunction to prevent these provisions from taking effect. As a result of this lawsuit, OSHA stated that it would delay the enforcement of the anti-retaliation provisions until December 1, 2016.
Late last month, the district court issued an order denying the plaintiffs’ request for a preliminary injunction. Notably, the court was careful to emphasize that its decision should not be taken as a comment or indication as to whether a permanent injunction (an order permanently blocking the enforcement of the provisions) would be appropriate and that it would make that determination at a later date. The incoming Trump administration may also roll back OSHA’s “clarification.” For now, however, employers should know that as of December 1, 2016, the anti-retaliation provisions of the OSHA final rule are in effect, and should take immediate steps to ensure they are in compliance.
Specifically, as we previously advised, employers should take care to be sure that the personnel responsible for recording injuries and illnesses are up to speed on the new anti-retaliation requirements of the new OSHA rule, and to train managers and supervisors on these anti-retaliation provisions. In addition, workplace drug testing policies and safety incentive programs must be reviewed for compliance with these new requirements.