OSHA’s New Anti-Retaliation Rule: A Game Changer For Employer Post-Accident Drug Testing And Safety Incentive Programs.

by Abbey Moland

(402) 341-3070

In May 2016, the Occupational Safety and Health Administration (OSHA) announced a final rule changing the way workplace injury and illness data is collected and reported by employers. The new rule requires covered employers to electronically submit injury and illness data to OSHA and it also makes certain data publicly available via the OSHA website.

More notably; however, the new rule contains an anti-retaliation provision, which prohibits employers from retaliating against employees for reporting work-related injuries or illnesses. This portion of the rule alters OSHA’s position on disciplinary and incentive programs as well as when drug testing can be conducted. The rule also reemphasizes the protections for employees to report injury and illnesses without fear of retaliation.

The new rule became effective December 1, 2016 and contains three key provisions of which employers should take note:

First, blanket, post-accident drug testing policies run afoul of the new rule. Now, an employer must have an objectively reasonable basis for concluding that the accident was likely due to an impairment attributable to drugs or alcohol. Under the new rule, employers may conduct post-accident drug testing only when: (1) the employer has a reasonable basis that the incident or injury was likely to have been caused by the employee’s impairment; and (2) the drug test used will determine whether the employee was impaired at the time of the incident or injury. In particular, the OSHA guidance provides:

To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in 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.

This Guidance is available at: https://www.osha.gov/shpguidelines/. The rule does not impact DOT or other federal or state law drug testing requirements, but it makes clear that employers should have a reasonable belief that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.

Second, an employer’s internal procedures for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting. The OSHA guidance warns employers against disciplining an employee who reports a work-related injury or illness under the pretext that the employee violated a work rule. Specifically, OSHA states that discipline will be pre-textual if an employer disciplines an employee who reports an injury for violating a work rule, but does not discipline an employee who violated the same work rule but did not report an injury.

Third, in accordance with OSHA’s long-standing position on such programs, the final rule makes clear that an employer may not award incentives based on the number of injuries or illnesses that are reported or occur during a certain period of time (e.g., cash prize raffle if no recordable/lost time injuries take place). In OSHA’s view such incentive programs deter employees from reporting injuries or illnesses since they have a financial incentive not to report. The guidance makes clear that incentive programs which reward things like participation in safety training, identification of hazards, or reporting near misses are allowed.

Finally, it is important to note that the new rule creates the possibility that an employer can be cited for a violation of the rule, in addition to any retaliation claim filed by an employee. This development greatly enhances the potential liability to an employer for any discipline issued for violation of safety rules.

The implications of OSHA’s new rule are far-reaching. Employers should takes steps to train safety and management personnel tasked with recording and investigating workplace injuries and illnesses on OSHA’s new anti-retaliation provisions. Post-accident drug testing policies and any safety incentive programs should also be revised to ensure they incorporate OSHA’s new requirements.

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