RISK INSIGHT: OSHA Anti-Retaliation Provisions In Effect

New provisions proposed by OSHA May of 2016 in regards to workplace safety are now in effect.  The new final rule, labeled by OSHA as a rule to “Improve Tracking of Workplace Injuries and Illnesses”, was published in the Federal Register.  The complete rule technically becomes effective on January 1, 2017, but the anti-retaliation provisions took effect on December 1.

As a refresher, the anti-retaliation provisions of the new OSHA rules require reasonable procedures for employees to report work-related injuries and illnesses promptly and accurately.  Essentially, the key is that it is NOT reasonable if an employer’s policies and procedures regarding injury and illness reporting serve to discourage or deter an employee from reporting.

In interpretive guidance of the regulations, OSHA lays out 4 different policy areas in order to determine whether or not the employer achieves the “reasonable” standard:

  1. Injury and Illness Reporting: In order for policies and procedures to be considered “reasonable”, employers should not require immediate reporting but rather reporting “as soon as practicable”.  Also, no excessive or cumbersome steps to reporting should be required.  The Department of Labor (DOL) has information on modernizing reporting practices.
  2. Disciplinary Programs: Employers are permitted to discipline employees for safety rule violations but must consider the actual misconduct.  The determination regarding discipline should be made on whether employees who violated the same rule have been treated in the same way.
  3. Post-Accident Drug Testing: The new rules do not prohibit drug testing of employees as long as the policy does not serve to retaliate against an employee for reporting an injury/illness.  An employer’s drug testing policy would NOT violate the rules when an employee’s own behavior contributes to the injury, rather when an employer tests without a reasonable basis for doing so.  OSHA confirms that they will need to establish the three elements of retaliation to prove a violation: a protected report of an injury/illness; adverse action and causation.
  4. Safety Incentive Programs: Employers are not prohibited from utilizing safety incentive programs, but they must not create programs that deter or discourage an employee from reporting an injury or illness.  This would include any incentives and benefits tied to “Zero Accident/Injury” celebrations which are cancelled if an injury is reported.

As an employer, here are recommendations for what you need to do:

  • Update your safety policies to reflect the new rules.
  • Post the updated OSHA Workplace Safety Poster.
  • Provide employees with alternative means of reporting an injury.
  • Discuss new policies with employees so they understand the new rules in place.

Key Takeaway:

Employers should note that while these rules are in litigation, they still should review and implement the new rules.  (Review this OSHA fact sheet for an overview.)  Updating your policies and procedures can not only help to minimize your citation risk, but also enhance your safety environment.  Please work with your risk manager to put these policies into place.

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