OSHA’s Anti-Retaliation Provision Goes into Effect

The Occupational Safety and Health Administration’s (OSHA) final rule changing the way it collects, and employers report, workplace injury and illness data is now in effect. Under the new regulations, employers will be required to submit injury and illness data to OSHA electronically. Some of this data will be made publicly available on the OSHA website in an attempt to encourage employers to increase their focus on safety.

OSHA’s new rule also contains an anti-retaliation provision intended to stop 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. This can be done by posting the OSHA Job Safety and Health – It’s the Law poster from April 2015 or later. The rule also requires that employers’ procedure for reporting work-related injuries and illnesses is reasonable and does not discourage employees from reporting injuries and illnesses.

In a guidance document, OSHA clarified 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.

OSHA also warns against safety-incentive programs that deter employees from reporting injuries or illnesses. For example, a prize associated with no lost-time injuries will now be viewed by OSHA as a violation of the new rule since 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.

Further, OSHA clarified that post-incident drug testing pursuant to DOT or other federal or state law requirements is allowed. Post-incident drug-testing is only allowable if there is a reasonable possibility that drug use contributed to the report or illness. OSHA makes clear 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.

Do you have questions about how OSHA’s final rule could affect the way your business’ drug-testing or occupational medicine programs? You can contact WSS anytime for a free consultation. We’re Houston’s compliance experts!