June 20, 2017

June 20, 2017

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June 19, 2017

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OSHA Clarifies Discipline, Retaliation and Drug Testing Commentary

When the Occupational Safety and Health Administration (OSHA) released its 2016 final rule requiring the electronic reporting of workplace injury and illness reports, it included controversial provisions on discriminatory discipline, retaliation, and even post-incident drug testing by employers. The uproar was instantaneous, with industry groups quickly filing lawsuits challenging OSHA’s authority to enforce the rule. Originally scheduled to go into effect on August 10th, the effective date for the new anti-retaliation rule was pushed back by OSHA until November 1st, and more recently, until December 1st.

In the interim, Dorothy Dougherty, OSHA’s Deputy Assistant Secretary, issued an interpretation memorandum designed to explain the anti-retaliation and injury reporting procedures in more detail. The interpretation may help clarify what your organization must do in order to comply with the final rule – even if it doesn’t make the rule more palatable.

Reasonable Procedures For Employees To Report Workplace Injuries/Illnesses 

Safety, Health, ReportAn employer violates OSHA’s new final rule if it either fails to have a procedure for employees to report work-related injuries or illnesses, or its reporting procedure is unreasonable. OSHA states that this requirement is not new, as it was implicit in the previous version of the rule. But now, it is an explicit employer requirement.

OSHA considers a reporting procedure to be reasonable if it is not unduly burdensome and would not deter a reasonable employee from reporting an injury or illness. Examples of what it considers reasonable and unreasonable are as follows:

Reasonable

  • Requiring employees to report a work-related injury or illness as soon as practicable after realizing they have a reportable incident, such as the same or next business day, when possible

  • Requiring employees to report work-related injuries or illnesses to a supervisor through reasonable means, such as by phone, email or in person.

Unreasonable

  • Requiring ill or injured employees to report in person if they are unable to do so

  • Disciplining employees for failing to report “immediately” if they are incapacitated because of the injury or illness

  • Disciplining employees for failing to report before they realize they have a work-related injury that they are required to report

  • Unnecessarily cumbersome or an excessive number of steps to report a work-related injury or illness

In short, if your procedure allows employees to report workplace injuries and illnesses within a reasonable amount of time after they realize they have experienced a reportable event, and the procedure does not make employees jump through too many hoops, it will be reasonable and comply with the final rule.

Anti-Retaliation Provision Explained

Retaliating against employees for reporting work-related injuries or illnesses has long been unlawful. To issue a citation under section 1904.35(b)(1)(iv), OSHA must have reasonable cause to believe that an employer retaliated against an employee by showing:

  1. The employee reported a work-related injury or illness;

  2. The employer took adverse action against the employee (i.e., action that would deter a reasonable employee from accurately reporting a work-related injury or illness); and

  3. The employer took the adverse action because the employee reported a work-related injury or illness.

As in most employment retaliation cases, the third element on causation is often the toughest to prove. The determination is made on a case-by-case basis, depending on the specifics facts in any particular case.

OSHA has focused its commentary primarily on three types of potentially retaliatory actions—discipline policies, incentive programs, and post-accident drug testing. OSHA’s recent interpretation helps shed light on how employers should address these three issues to avoid a citation for a violation of the anti-retaliation rule.

Disciplining Employees For Violating Work Safety Rules

Employers violate the anti-retaliation provision by disciplining or terminating employees for reporting a work-related injury or illness. But, if an employer has a legitimate business reason for imposing discipline, such as the employee’s violation of a workplace safety rule, then there is no retaliation and no violation.

OSHA states that the primary inquiry is whether the employer has treated other employees who similarly violated a safety rule the same way – in other words, did the employer impose the same adverse action regardless of whether the other employees reported a work-related injury or illness. If the rule is consistently applied, then no retaliation exists. However, if the employer disproportionately disciplined employees for violating a rule when they reported workplace injuries, or the employer ignored violations of the safety rule when there was no injury or illness, OSHA may find that the actual reason for the discipline was the reported injury or illness rather than the rule violation.

Incentive Programs

OSHA does not prohibit employers from having safety-related incentive programs. But, it does prohibit employers from withholding a benefit or otherwise penalizing an employee because of a reported injury or illness. OSHA provides this example: if an employer raffles off a $500 gift card at the end of each month in which there are no workplace injuries, such an incentive program would violate the anti-retaliation provision as it withholds the incentive (i.e., the $500 gift card) when an employee reports a work-related injury. On the other hand, an acceptable alternative would be for the employer to raffle off a gift card each month in which employees universally comply with legitimate safety rules, such as using required fall protection and following lockout-tagout rules. The key is whether the employer is withholding a benefit because of a reported work-related injury. Incentive programs that penalize the reporting of injuries and illnesses are likely to result in an OSHA citation.

Post-Accident Drug Testing

One of OSHA’s more troubling and confusing anti-retaliation position is its stance that drug testing employees who report a work-related injury or illness can be considered retaliation. Many employers impose drug testing following any workplace accident or incident that results in injuries. OSHA states that while it does not prohibit employers from drug testing employees who report work-related injuries, employers must have an objectively reasonable basis for such testing.

So what is an objectively reasonable basis for testing? OSHA states that it will consider factors including whether the employer has a reasonable basis for concluding that drug use could have contributed to the injury or illness, whether other employees involved in the incident that caused the injury were also tested (or whether only the employee who reported an injury was tested), and whether the employer has a heightened interest in determining if drug use could have contributed to the injury due to the hazardousness of the work being performed.

In addition, OSHA will consider whether the drug test is capable of measuring impairment at the time the injury occurred, where such test is available. In its interpretive memo, though, OSHA states that at this time, the agency will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.

The bottom line is that OSHA is looking whether an employer is using drug and/or alcohol testing as a form of discipline against employees who report a workplace injury, which would be retaliation. Consequently, post-accident drug testing is permitted if all workers involved in the accident are tested in order to gain insight into the cause of the accident. But drug testing an employee whose injury could not possibly be related to drug use, such as a repetitive strain injury, would be seen as retaliation. 

Key Takeaways

Assuming that the anti-retaliation rules survive their legal challenges, employers should prepare to implement a reasonable procedure for employees to report work-related injuries and illnesses. Organizations should review any safety-related incentive programs and remove any punitive effects or withholding of benefits/incentives if an employee reports a workplace injury. When adopting and enforcing drug testing policies, be certain to test all workers involved in a workplace incident, not just those who were injured or reported an injury. And last but not least, be very mindful when deciding to discipline or terminate an employee who has reported a workplace injury or illness. Without a legitimate, well-document business reason for the discipline that is unrelated to the injury report, you may find your business cited for retaliation.

Copyright Holland & Hart LLP 1995-2017.

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