The Occupational Safety and Health Administration (“OSHA”) has issued a memorandum to its Regional Administrators and published a new webpage outlining its planned enforcement of the new reporting and anti-retaliation provisions. The agency’s guidance does little more than restate and expound upon what it has already provided in previous documents, such as in the 2012 Fairfax Memorandum and the comments to the final rule itself. Nevertheless, it may be easier for employers to review their discipline, post-accident drug testing, and safety incentive programs with these guidelines in hand.
As we reported previously on the Work Knowledge Blog, OSHA issued new rules 29 C.F.R. §§ 1904.35, 1904.36, 1904.41 in May 2016. After a couple of delays, Sections 1904.35 and 1904.36 are set for enforcement on December 1, 2016—unless, of course, OSHA delays that enforcement again unilaterally or at the request of the judge in the TEXO ABC/AGC, Inc., et al. v. United States Sec’y of Lab. matter. OSHA’s new enforcement guidance speaks only to Section 1904.35.
Section 1904.35(b)(1)(i) requires employers to establish a procedure for employees to report work-related injuries and illnesses promptly and accurately, provided that the policy does not “deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” In its new guidance, OSHA distinguishes between a “rigid prompt-reporting requirement” and a policy requiring reporting “as soon as practicable” with a consideration of the nature of the injury. OSHA states that the latter is reasonable, while the former is a violation of Section 1904.35(b)(1)(i) if, for example, the employer disciplines the employee for late reporting even if the employee was incapacitated or did not realize they sufferred a reportable injury. OSHA outlined similar distinctions in the 2012 Fairfax Memorandum. Thus, OSHA’s new enforcement guidance does not really embody a change in agency policy but, rather, represents a renewed focus on these issues.
Section 1904.35(b)(1)(iv) states that employers must not “discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.” OSHA states that this rule was included specifically because commenters raised concerns about employers’ discipline, post-accident drug testing, and safety incentive programs. OSHA clarifies that the new rule does not prohibit these policies “categorically” or create new employer obligations. Despite that clarification, OSHA is forthcoming in its motive to cite employers for retaliation, even where an individual employee fails to file a whistleblower complaint with OSHA within 30 days of the alleged retaliation. This effectively increases employers’ potential liability for retaliation under Section 11(c) from 30 days to 6 months. 29 U.S.C. § 658(c).
To establish retaliation, OSHA “must demonstrate” that when the employee reported a workplace injury or illness, the employer took adverse action against him or her “because the employee reported” the injury or illness. An employer can defeat OSHA’s claim by showing that it had a “legitimate business reason” for taking the adverse action against the employee, provided, of course, that the business reason is not a pretext for discrimination or retaliation. Unfortunately for employers, this analysis is likely to be fact-intensive, and therefore, time- and resource-intensive.
Employers may be able to reduce their risk of liability (and their associated time and expense commitments) by implementing some of these key considerations:
- Enforcing safety rules consistently, rather than only when an injury is reported;
- Referring to specific safety rules, rather than generalized “work safely” or “maintain situational awareness” rules, when documenting employee discipline;
- Revising post-accident drug and alcohol testing policies to provide objective criteria, such as establishing that such testing will be limited to circumstances involving a serious bodily injury or property damage above a certain amount;
- Using post-accident drug and alcohol tests that are capable of measuring an employee’s impairment at the time of the accident (if such tests are available);
- Ensuring post-accident drug and alcohol testing is conducted pursuant to state or federal laws, such as workers’ compensation laws or Department of Transportation regulations;
- Maintaining documentation of the objective need for a drug test following an accident;
- Rewording existing safety incentive programs to be for universal compliance with workplace safety rules, rather than for an accident- or injury-free workplace during a specified time.
- Providing training to managers and supervisors regarding proper implementation of the employer’s discipline, post-accident drug testing, and safety incentive programs.
Of course, some of these considerations may be inapplicable or may not completely eliminate risk in any particular situation. So given the highly fact-specific inquiry that will be made by OSHA, employers must approach these issues objectively, if not strategically. It is always a good practice for managers or supervisors to consult with their employers’ human resources professionals (or an experienced labor and employment attorney) to ensure that their employers’ policies and programs are applied consistently, especially as it relates to disciplinary issues. This sort of strategic thinking may help avoid an unnecessary hassle with OSHA down the road.