The Occupational Safety and Health Administration (OSHA) announced that it is delaying enforcement of its new anti-retaliation rule, set forth in 29 CFR 1904.35 and originally effective August 10, 2016, until November 1, 2016. This delay is to allow additional time for outreach to regulated employers.
This new rule, to be enforced effective November 1, provides that employers must:
- Establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness;
- Inform each employee of their procedure for reporting work-related injuries and illnesses; and
- Inform each employee that:
- Employees have the right to report work-related injuries and illnesses; and
- Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses.
While Section 11(c) of the Occupational Safety and Health Act already prohibits any person from discharging or otherwise discriminating against an employee who reports a fatality, injury or illness, OSHA may not act under that section unless an employee files a complaint with OSHA within 30 days of the retaliation. In contrast, under this new rule, codified under 29 CFR 1904.35, OSHA will be able to cite and issue a penalty to an employer for retaliation even if the employee does not file a complaint, or if the employer has a program that deters or discourages reporting through the threat of retaliation. Penalties for OSHA citations will increase by approximately 77 percent effective August 1, 2016. This remedy under 29 CFR 1904.35 is in addition to the remedy available under Section 11(c) where an employee files a retaliation complaint.
OSHA’s commentary provides that blanket post-accident drug testing policies and certain incentive programs for employees will likely violate its new anti-retaliation rule and lead to citations and penalties, unless that drug testing policy or incentive program is required by other state or federal law. OSHA believes that 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. For example, according to OSHA, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. OSHA believes such a policy is likely only to deter reporting without contributing to the employer's understanding of why the injury occurred, or in any other way contributing to workplace safety. Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing. Further, drug testing that may be perceived as punitive or embarrassing to the employee will likely violate this rule according to OSHA.
Additionally, OSHA contends that certain employee incentive programs may violate its rule. According to OSHA, an employer that enters all employees who have not been injured in the previous year in a drawing to win a prize, or awards a team of employees a bonus if no one from the team is injured over some period of time, may violate this rule. An employer may have an incentive program designed to improve workplace safety, but an employer needs to be careful that such program will not discourage reporting of a work injury.
In response to this new anti-retaliation rule, several business organizations have filed suits in federal courts asserting that OSHA overstepped its authority in issuing this rule. However, until those cases are resolved, we recommend that employers endeavor to comply with OSHA’s new anti-retaliation rule. Employers should review their handbooks, drug testing policies and workplace safety incentive programs to ensure compliance. Further, employers need to ensure that any changes to their policies made to comply with OSHA’s new anti-retaliation rule are communicated to employees. We recommend that employers consider providing training for employees on any changes to their applicable policies made consistent with OSHA’s new anti-retaliation provisions.