OSHA Tries to Make Workers Safer by Making Post-Accident Drug Screens and Safety-Incentive Programs More Difficult to Apply

On May 12, 2016 the Occupational Safety and Health Administration (OSHA) published a final Rule requiring many employers to submit illness and injury data electronically. This provision has been widely publicized and will take effect January 1, 2017. However, the new Rule also contains a much less publicized provision requiring employers to implement reasonable procedures for employees to report workplace illnesses and injuries promptly and accurately. This provision also contains anti-retaliation language providing that no such procedure can deter or discourage an employee from making a report. This provision of the Rule was initially set to go into effect August 10, 2016 but, due to suits filed by various pro-business interests, OSHA has agreed to refrain from implementing this provision until November 1, 2016. In theory, the anti-retaliation provision of the new Rule sounds logical. However, OSHA’s construction of the rule may be less so.

Under the new Rule:

a) Employers must specifically inform employees of their right to report workplace injuries and illnesses free from retaliation;

b) Employer policies regarding the reporting of workplace illnesses and injuries must be reasonable and may not deter or discourage an employee from reporting; and

c) Employers may not retaliate against employees for reporting workplace illnesses or injuries.

Post-Accident Drug Screens

Although OSHA has said that “nothing in the final rule prohibits employers from disciplining employees for violating legitimate safety rules, even if the same employee who violated a safety rule also was injured as a result of that violation and reported that injury or illness (provided that employees who violate the same work rule are treated similarly without regard to whether they also reported a work-related illness or injury).”, it also takes the position that policies requiring all employees involved in accidents to submit to a drug screen will violate the anti-retaliation language of the Rule. Specifically, OSHA takes the position that such a policy would improperly deter an employee from reporting a workplace injury. Instead, OSHA says that drug testing policies should limit post-incident testing to instances in which the employer has reason to believe that employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment at the time of the accident. According to OSHA’s explanation of the Rule, policies requiring blanket post-accident drug screens will violate the Rule.

Safety Incentive Programs

OSHA has also taken the position that safety incentive programs that negatively impact employees who report work related illness or injuries will violate the Rule. For example, an incentive plan that disqualifies an entire crew from a safety bonus because one member of the crew reported a work related injury would violate the new rule. Conversely, a program that makes a bonus dependent upon employees following safety rules would not violate the rule.

Reporting Illness and Injuries

OSHA has also questioned policies requiring employees to report an incident within a certain time limit or face discipline, claiming that this may discourage an employee from reporting in violation of the Act or constitute retaliation. (OSHA is currently prosecuting a case against U.S. Steel on the grounds that any policy requiring employees to report injuries or illnesses sooner than seven days after the injury is discovered are illegal because they discourage employees from reporting workplace injuries.) (Thomas Perez v. United States Steel Corp., U.S. District Court for the District of Delaware.) In the comments accompanying the Rule, OSHA takes the position that retaliation can be anything that would deter a reasonable employee from reporting a work-related injury or illness.

OSHA Can Now Issue Citations Without an Employee Complaint

Under the “old Rule”, OSHA could not issue a Citation against an employer for retaliating against an employee unless the employee first filed a complaint. Under the new Rule, OSHA has given itself the power to issue a Citation for retaliation even if no employee has filed a complaint. This opens the door to OSHA issuing citations based upon the mere language of your drug testing or safety-incentive policies if it believes that they violate the new Rule.

Although OSHA’s new Rule may ignore how real-world businesses operate, and actually make workplaces less safe, employers must be aware of and abide by the new Rule or face possible Citations by OSHA. Employers should keep an eye on the pending litigation concerning this Rule and begin to evaluate their existing reporting, drug testing and safety-initiative policies and programs in anticipation of OSHA enforcing the new Rule on November 1, 2016.

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