OSHA Further Delays Anti-Retaliation Enforcement, Issues Guidance

Provisions affecting safety incentive programs and post-incident drug tests delayed to Dec. 1

OSHA Further Delays Anti-Retaliation Enforcement, Issues Guidance

The Occupational Safety and Health Administration (OSHA) has delayed enforcement of its injury and illness record-keeping rule's anti-retaliation provisions until Dec. 1.

OSHA agreed to delay enforcement at the request of a federal judge in Texas who is reviewing a legal challenge to the provisions, explained Patrick Miller, an attorney with Sherman & Howard in Denver.

The business groups that filed the lawsuit claim that OSHA's restrictions on mandatory post-accident drug and alcohol testing and incident-based safety incentive programs won't make the workplace safer. They asked the court to issue an injunction that will stop the provisions from taking effect.

"The court is seeking additional briefing about whether an injunction, if any, should be national in scope and affect nonparties or be limited to just those parties before the court," said Christopher Kazanowski, an attorney with Honigman in Detroit.

Despite the enforcement delay and pending lawsuit, on Oct. 19 OSHA issued anticipated guidance that provides additional details about the provisions and offers some examples of programs that could be considered retaliatory.

Second Delay

The anti-retaliation provisions are part of a larger record-keeping rule that will require covered employers to electronically submit injury and illness data to OSHA beginning in 2017.

Under the rule, employers must inform employees of their right to report work-related incidents.

Additionally, employers must have "reasonable" reporting procedures in place that don't deter workers from reporting incidents.

The anti-retaliation provisions were scheduled to take effect on Aug. 10, but OSHA initially delayed enforcement until Nov. 1 and now again until Dec. 1.

The first delay was likely due to employer confusion about what constitutes "reasonable" reporting procedures and how the new provisions will impact safety incentive programs and drug and alcohol testing.

The agency's Oct. 19 guidance aimed to clear up some of the confusion about what policies and practices may be considered retaliatory. But the guidance may prompt even more questions, particularly about drug testing.

Safety Incentives

Under the new rule, employers can still have safety incentive programs but they can't be tied to the reporting of any incidents, Miller explained.

The guidance used as an example a company that holds a raffle for a gift card after each month without a reported incident in which an employee had to miss work.  The employer would likely be in violation of the rule if it "cancels the raffle in a particular month simply because an employee reported a lost-time injury without regard to the circumstances of the injury."

However, "raffling off a $500 gift card each month in which employees universally complied with legitimate workplace safety rules—such as using required hard hats and fall protection … would not violate the rule."

Limited Drug Testing

Employers can't have a blanket post-accident drug and alcohol testing policy under the new rule. Instead, they must have "an objectively reasonable basis" for such testing.

This forces the employer to make a determination about whether drug or alcohol use was likely a contributing factor to the incident, Miller said.

OSHA explained that it will evaluate the following factors when considering the reasonableness of a post-incident drug screen:

  • Whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness.
  • Whether other employees involved in the incident were also tested or whether the employer only tested the employee who reported the injury or illness.
  • Whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due to the hazardousness of the work being performed when the incident occurred. 

The guidance seems to be saying that employers in a highly hazardous industry may have more of an interest in conducting post-accident drug and alcohol screening than other employers, Miller said. "In my view, all employers have an interest in ensuring workers aren't intoxicated," he noted.

"OSHA further clarified that only present impairment will be considered," Kazanowski said. "Thus, as a practical matter, only alcohol testing will be useful."

Because drug tests don't accurately show whether a worker was under the influence at the time of the incidence, the results can't be used to discipline employees who report an injury, the guidance said. But drug testing "may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances."

"It is unclear what OSHA is requiring here," Kazanowski said. "On the one hand it doesn't prohibit drug testing, but on the other it suggests drug testing is relatively useless and cannot be used as a disciplinary device post-accident."

The rule doesn't affect testing done in accordance with state workers' compensation laws or other state or federal laws.

Review Procedures

For now, employers should operate under the assumption that the provisions are going to take effect in December, Miller said.

Kazanowski mentioned that employers still should bring themselves into compliance with the rule, even if it is further delayed, because the rule merely codifies many anti-retaliation provisions that were already implied.

"By posting the OSHA notice of rights poster, employers satisfy the requirement to advise employees that they can make reports of work-related injuries and illness without fear of retaliation," he said. 

[SHRM members only: How to Determine Regulatory Requirements for Safety]

"Employers mainly need to review their workplace injuries and illness reporting procedures to ensure they are not unreasonable," he added. "Any procedures that require same-day reporting or in-person reporting or discipline results should be revised."

He noted that the provisions will take effect on the same day as the new federal overtime rule.

"This is a prime time for employers to review their handbook and wage and hour polices," Kazanowski said. "They might as well update their OSHA policies and procedures, too."



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