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New Anti-retaliation Provisions Pose Challenges for Employers

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By Marylou Fabbo, Esq.

Last summer, the U.S. Occupational Safety and Health Administration (OSHA) announced a number of regulatory changes that are designed to improve employee safety. For organizations that have not yet taken a look at how the rule may impact their company’s policies and procedures, now is the time to do so.

Marylou Fabbo

Marylou Fabbo

The rule’s guiding principle is that an employer must have reasonable procedures by which employees can “promptly and accurately” report work-related injuries and illnesses without the fear of retaliation, and a policy or procedure that deters an employee from reporting an injury or illness that is not reasonable. Some policies that may discourage employees from coming forward with injury and illness information include drug-testing policies and employee-incentive programs.

Drug Testing and Accident-free Reward Policies Problematic

The rule prohibits non-discretionary, post-accident drug testing. Post-accident testing is not prohibited altogether, but employers’ drug-testing policies must be limited to situations in which the employer has reasonable suspicion that employee drug use likely contributed to the incident.

For example, it would not be reasonable for an employer to drug-test an employee who suffers a repetitive action injury from typing. Also, while not specifically required in the rule, employers who are making a determination as to whether to drug-test an employee should rely on objective evidence of suspected drug use rather than subjective suspicions. In situations where drug testing appears warranted, the testing itself must not be punitive or embarrassing.

For those employers who are required to test under certain federal laws, such as U.S. Department of Transportation regulations, continued automatic post-accident testing is likely permissible. Still, employers should check with counsel to confirm that their policies are in compliance with the new rule.

What about rewarding employees for accident-free days? Many employers believe rewards and recognition are strong employee motivators. While the new rule does not prohibit incentive programs altogether, employers cannot maintain incentive programs that might encourage an employee not to report an injury. For example, an employee who is eligible to receive a bonus when the organization reaches a set number of accident-free days might be deterred from reporting an injury that would bar the employee from receiving that compensation.

So what’s an employer to do? They should design incentive programs to encourage employee participation in making the workplace a safer environment rather than from discouraging employees from reporting accidents and injuries.

Required Written Reporting Procedures

The rule also imposes some affirmative duties upon employers. They are required to establish a reporting procedure that does not deter or discourage the reporting of a work-related injury or illness. The procedure cannot be unduly burdensome for the employee and should allow reporting through various means, such as phone, e-mail, or in person. It also must provide employees with a reasonable amount of time to report rather than immediately.

Additionally, employers must let their employees know that they have a right to be free from retaliation. Employers can meet the rule’s requirement that they provide notice to employees by posting OSHA’s “It’s The Law” employee-rights poster in the workplace or by drafting policies that include the required language.

What If We Violate the New Rule?

Companies that do not abide by the new rule’s requirements may face legal challenges on multiple fronts. Employers can violate the anti-retaliation provision by disciplining employees for reporting work-related accidents or illnesses, by subjecting them to drug testing when it is not reasonable to do so, or by engaging in a variety of other behaviors that may be retaliatory.

Although it is unlikely that OSHA will inspect your site solely to find out whether you are in compliance, employees can contact OSHA to report retaliatory practices, which may trigger a visit to the workplace and an inspection of hundreds of records. The OSHA Whistleblower Protection Program allows the agency to file complaints against employers suspected of retaliating against employees. Penalties for unlawful retaliation may include repayment for lost wages, compensation for emotional distress, reinstatement of the employee(s), and even punitive damages.

Employers should give careful review to their established procedures for reporting work-related injuries and illnesses and revamp them if necessary to ensure that they are reasonable. Employers who drug test after work-related accidents should adopt and enforce drug-testing policies that are consistent with the new rule’s anti-retaliation provisions. Requiring management, supervisors, and human-resource personnel to attend educational programs on how to detect the signs of drug impairment can support an employer’s position that it in fact had a reasonable basis upon which to believe drug use contributed to a particular accident.

Organizations should take a close look at their safety-incentive programs and remove any withholding of incentives based on the reporting of work-place injuries. Companies that are mindful when deciding whether to take an adverse action against an employee based on a work-related injury, and document a legitimate, non-retaliatory business reason for taking that action when they do, are likely to reduce their risk of OSHA citations and/or other legal action.

Marylou Fabbo, a partner in the Springfield office of Skoler, Abbott & Presser, joined the firm in 1995. As head of the firm’s litigation team, she practices in all areas of employment litigation. She provides counsel to management on taking proactive steps to reduce the risk of legal liability that may be imposed as the result of illegal employment practices, and defends employers who are faced with lawsuits and administrative charges filed by current and former employers.

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