OSHA Issues New Guidance for Anti-Retaliation Rule

osha-bannerEarlier this year, OSHA issued a new rule regarding the electronic submission of injury and illness data. While this rule was expected a portion of the rule that codifies the agency’s anti-retaliation stance was not. As reported on this blog at the time and during our State Unit meetings in September, the rule included sections on making sure all employers had a clear policy and procedure for reporting injuries and work-related illnesses and prohibited retaliation or any action that could be considered retaliation for reporting an injury.

Last week, OSHA delayed the implementation of the anti-retaliation rules for a second time to December 1. They also issued new guidance on those portions of the new rule as well. The guidance attempts to clarify what is considered retaliation and what is proper disciplinary
action. They also outline what they consider appropriate post-accident drug testing and what drug testing would be considered retaliatory and in violation of the new rule.

The guidance actually attempted to clarify two things that have had lawyers on both sides of this issue quite vocal. The first is the section of the rule that deals with employers must have a ‘reasonable’ system for reporting injuries. While lawyers get pretty excited about what ‘reasonable’ means, for operations the size of most cotton gins, it would be a fairly straight
forward affair. You must have in place a clearly understood way for an injured employee to report the injury and get treatment. This may mean reporting to the supervisor, it may mean reporting to the office.. in whatever manner is simple and clear for your employees, you need to make sure they know how it works. You should always be clear in the policy.

The second part of the guidance deals with the more controversial aspect of the rule and that is the anti-retaliation portions. OSHA has apparently seen its fair share of employers punishing employees simply for getting hurt and reporting. They have also, quite obviously, seen a number of injuries that should have been reported sooner but were not for fear of losing a bonus or other benefit of not reporting an injury.

Lets look at safety incentive type programs. A no-lost-time bonus, or incentive program may seem like a good deal to you and me but to OSHA it would be a deterrent from reporting a legitimate injury. The peer pressure from a shift bonus or incentive could also be considered a deterrent and therefor could be a violation. A bonus for reporting unsafe conditions or a lottery for finding a safer way to do things would be acceptable. If want to incentivize safe work habits, you will need to be a bit more creative and not take anything away from anyone for anyone getting injured.

The most controversial part of the rule is the post-accident drug testing portions. The rule explains that drug testing simply for getting injured is a dis-incentive for reporting an injury but you are not prohibited from drug tested as some sites are reporting. First of all any government required or sanctioned (workers comp) testing is allowed. The crux of the rule is that if the threat of drug testing would be a deterrent from reporting an injury, it would be deemed a violation. The examples they go in to deal with the injured employee is tested but the others in the area that may have contributed would not be tested but if everyone involved is tested, it would not likely be a violation. Testing an injured employee who was an innocent by-stander that got hurt wouldn’t be reasonable but testing the forklift driver that caused the accident would be reasonable. The guidance also discusses only testing an employee where his or her actions were the reason for the injury and that drug or alcohol impairment would be a contributing factor. So disciplinary action could only be taken where impairment was the issue and when it would be possible to measure the impairment level. This may be a combination of a drug test and a supervisor or other witnesses who knew of use and could recognize impairment.

The long and the short of it (I’m probably making it more complicated than it needs to be) is that you cannot have any programs or policies that would make an employee think twice about reporting an injury and getting treatment. Losing incentives or bonuses, threat of actual retaliation, or even drug testing could all be construed as disincentives to reporting and injury and should be looked at very closely before you use these programs.

Keep reading the Gin Press as this is sure to continue to evolve over time.