OSHA Delays Controversial Anti-Retaliation Enforcement

OSHA Delays Controversial Anti-Retaliation Enforcement

[Editor's Note: On Oct. 19, OSHA announced that it will again delay enforcement of its injury and illness tracking rule's anti-retaliation provisions. The effective date will be Dec. 1.]

Employers will have a little more time to ensure that their workplace safety programs and policies comply with controversial new rules regarding drug testing and safety incentives, according to an Occupational Safety and Health Administration (OSHA) announcement on July 13.

OSHA said it will delay until Nov. 1 the enforcement of anti-retaliation provisions that are included in its new injury and illness record-keeping rule. Enforcement was originally set to start on Aug. 10.

Under the anti-retaliation provisions, employers can't discourage workers from reporting workplace injuries or illnesses, and they must notify workers that they won't be retaliated against for reporting such incidents.

However, employers had many compliance questions when they compared their safety policies to the new provisions, employment attorneys told SHRM Online. 

"OSHA has received considerable pushback on the new rule, particularly with respect to its statements that certain post-accident drug testing and safety incentive programs might run afoul of its provisions," said Patrick Miller, an attorney with Sherman & Howard in Denver.

Under the final rule, OSHA will have authority to issue citations to employers if their programs deter or discourage employees from reporting incidents "through the threat of retaliation."

Additional Guidance Anticipated

The anti-retaliation provisions are part of a broader new reporting rule that will require covered employers to electronically submit injury and illness data to OSHA. Some of that information will be available to the public on the agency's website.

"Analysis of this data will enable OSHA to use its enforcement and compliance assistance resources more efficiently," according to OSHA's website. The electronic reporting rule takes effect Jan. 1, 2017.

The anti-retaliation provisions, however, were slated for enforcement beginning on Aug. 10 but have now been delayed.

OSHA said it was postponing enforcement in order to "conduct additional outreach and provide educational materials and guidance for employers."

This is likely because employers had so many questions, particularly about post-accident drug testing and incentive programs, said Melissa Bailey, an attorney with Ogletree Deakins in Washington, D.C.

In the preamble to the rule, OSHA said that post-accident drug testing and safety incentive plans can potentially lead to impermissible retaliation against employees who report incidents, Bailey explained.

The agency didn't ban drug testing altogether, but stated that "blanket post-injury drug-testing policies deter proper reporting." Post-incident drug testing should be limited to incidents for which "employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use."

Similarly, OSHA said it didn't intend to "categorically ban all incentive programs," but that they "must be structured in such a way as to encourage safety in the workplace without discouraging the reporting of injuries and illnesses."

"Much of the controversy … concerns the fact that most of the substantive requirements are buried in the Federal Register's preamble to the new rule," said Christopher R. Kazanowski, an attorney with Honigman's labor and employment practice in Detroit. 

This is "tantamount to putting major plot points for a novel in the 'about the author' section at the beginning," Kazanowski said.

"Moreover, the vagueness of the rule, especially as it concerns requiring 'reasonable' injury and illness reporting procedures and bans broad 'safety' policies used as a pretext to deter reporting, warrants further input by OSHA," he added.

Kazanowski said the "anticipated guidance likely will provide greater direction on whether certain employer policies will be deemed 'reasonable' or not."

Changes Not Likely

"Some provisions of the new standard will be easy to comply with, for example, the requirement to inform employees of their rights to report injuries and illnesses free from retaliation," Miller said.   

"OSHA will be more scrutinizing of policies and practices that deter reporting, such as an 'injury free' bonus program or blanket post-incident drug testing for any injury or illness in the workplace," like a drug screen following a bee sting, Kazanowski noted.

Miller said employers should evaluate whether their safety incentive programs "place an unreasonable importance on reportable injuries as a barometer of success and whether any changes to drug testing policies might be appropriate." 

"While the extension might offer some breathing room in terms of enforcement, the language of the standard will not change, nor do I believe that OSHA's interpretation of it will differ in any large measure," he added.

"Employers should be careful, though, not to make drastic changes to their reasonable safety incentive plans or post-accident drug testing policies."

Authority to Issue Citations

The new rule will provide OSHA the authority to "cite an employer for retaliation even if the employee did not file a complaint, or if the employer has a program that deters or discourages reporting through the threat of retaliation," the agency said. 

OSHA officers engaged in the inspection process will be able to issue citations if they think there is a whistle-blower issue or discouragement to report workplace injuries or illnesses, said Daniel Davis, an attorney with Proskauer in Washington, D.C.

The broader message about the new rule is that OSHA compliance officers will be acting more like officers for the Equal Employment Opportunity Commission, Bailey said. "OSHA officers will now be looking at an employer's motives for disciplining an employee. It's really going to be a sea change in how compliance officers do their job."

Business Groups Challenged Rule

In addition to the pushback from the employer community, the enforcement delay could be related to a lawsuit that was filed by business groups in the U.S. District Court for the Northern District of Texas, Davis noted.

"One day before OSHA's announcement of the delay, those challenging the anti-retaliation provisions filed for an injunction," Kazanowski said. "The challengers argue the provisions, particularly the ban on blanket post-incident drug testing, violate federal agency rulemaking laws and should be vacated."

"Whether OSHA's enforcement will be further delayed past November is yet to be seen and may depend on the success or failure of the injunction request out in Texas," he noted.

Review Policies Now

Because it isn't clear when OSHA's guidance might come out, "employers are well-advised to begin looking at their policies as soon as possible and making any necessary changes," Miller said. 

Employers should take a look at their policies and think about anything OSHA officers or employees might construe as discouraging employees from reporting workplace injuries, Davis said.

Bailey noted that employers will want to make sure that when they discipline someone who has been injured, that the discipline is neutral, valid and tied to the violation of work rules.



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