On May 12, 2016, the Occupational Safety and Health Administration (OSHA) issued a final rule, including anti-retaliation provisions, requiring certain employers to electronically submit data from their work-related injury records to OSHA. On Oct. 19, 2016, OSHA published an interpretation of how the anti-retaliation provisions affect employee discipline, drug and alcohol testing, and safety incentive programs.
The Anti-Retaliation Provisions
According to OSHA, the final rule clarifies existing law regarding employee anti-retaliation protections. Specifically, OSHA’s anti-retaliation provisions:
- Require employers to inform employees that they have a right to report work-related injuries and illnesses free from retaliation;
- Direct employers to adopt reasonable procedures (“not unduly burdensome” and does not “deter or discourage”) that employees can use to report work-related injuries and illnesses; and
- Prohibit employers from retaliating against employees solely because they report work-related injuries or illnesses.
Furthermore, OSHA explains that to establish a case of retaliation, OSHA inspectors will need to prove that:
- An employee reported a work-related injury or illness;
- The employer took an adverse action against the employee reporting the injury or illness; and
- The adverse action was taken because of the report and not because of a legitimate business reason.
Implications for Employers
Under the final rule, employers can use disciplinary procedures for legitimate business purposes. This means that employers can discipline an employee who violates safety rules or reasonable reporting procedures. However, disciplining an employee simply because the employee reported a work-related injury or illness would be a violation of the anti-retaliation provisions. It would also be a violation for the employer to inconsistently enforce employee compliance with workplace safety rules and procedures.
To determine whether a particular policy, rule or employee disciplinary action complies with the rule, OSHA recommends that employers consider, among other things:
- The reasonableness of the rule;
- Whether an employee had a good reason to deviate from the rule;
- Whether the employer has a substantial interest in the rule and on its enforcement; and
- Whether any disciplinary action taken against an employee is proportionate to the employer’s interest in the rule.
Drug and Alcohol Testing
The final rule prohibits employers from adopting blanket policies that require all employees to submit to drug and alcohol testing after reporting a work-related injury. According to OSHA, requiring (or the threat of requiring) employees to submit to drug and alcohol testing after reporting an injury—regardless of the reasons and circumstances surrounding the incident—is a form of adverse action. OSHA states that mandatory blanket policies are problematic because:
- A blanket policy would require drug testing even for injuries or illnesses that may have no connection to the use of drugs or alcohol; and
- Employees may not report injuries for fear of having to submit to drug testing procedures.
However, the final rule does not prohibit employers from testing employees who are injured at the workplace or adopting drug and alcohol testing policies. The testing must be:
- Conducted in accordance with federal, state or local laws;
- Part of pre-employment or random screening initiatives; or
- Justified by an objectively reasonable basis.
Under the final rule, employers may continue to implement employee safety incentive programs to encourage workplace safety and promote more worker participation in safety-related activities. OSHA’s memo outlines that acceptable incentive programs should reward:
- Worker participation in safety program activities and evaluations;
- Worker completion of safety and health training;
- Reporting and responding to hazards and close calls/near misses;
- Safety walkthroughs and identification of hazards;
- Conformance to planned preventive maintenance schedules; or
- Compliance with legitimate workplace safety rules.