On October 19, 2016, OSHA published a memorandum interpreting the new anti-retaliation provisions of the new final rule – “Improve Tracking of Workplace of Injuries and Illnesses.” In addition, OHSA also published additional guidance materials which provided example scenarios of incentive, disciplinary and drug-testing programs and how the new rule may be interpreted to those scenarios.
Under the new rule (which goes into effect on January 1, 2017), employers are required to establish reasonable procedures for reporting a work-related injury or illness. The new rule also prohibits employers from retaliating or taking adverse action against employees for reporting work-related injuries or illnesses.
With the new rule clearly prohibiting retaliation, there was concern regarding how the new rule would impact incentive, disciplinary and drug-testing programs. In the newly released materials, OSHA expressly clarifies that “the rule does not ban appropriate disciplinary, incentive, or drug-testing programs” and (through the example scenarios) explains what programs would be considered “appropriate.”
With respect to disciplinary programs, OSHA has stated that “the rule does not prohibit disciplinary programs. However, employers must not use disciplinary action, or the threat of disciplinary action, to retaliate against an employee for reporting an injury or illness.”
According to OSHA, the following types of disciplinary programs would violate the new rule:
- Automatically suspending an employee who reports a work-related injury.
- Assigning employees points that have negative employment consequences for reporting a work-related injury.
- Pre-textual discipline, such as disciplining an employee for allegedly violating a safety rule but the real basis for discipline was the injury or illness report. Here, OSHA would look to see if other employees are also disciplined for violating the same safety rule in cases where a violation of that safety rule does not result in any injury.
- Rigid prompt reporting requirements, such as disciplining for not immediately reporting a work-related injury in cases where the employee has not yet had time to identify a work-related injury has occurred.
Conversely, OSHA clarified that the following disciplinary programs would be permissible:
- an employer who disciplines an employee for by-passing a guard, contrary to the employer’s safety policies, even when that employee is injured would not be a violation of the new rule
- an employer who disciplines employees for not reporting work-related injuries “immediately” or “as soon as practicable” is permissible where employers allow sufficient time for employees to realize they have suffered a work-related injury.
Finally, employers must remember one thing with any disciplinary program, it must be applied consistently to all employees.
With respect to incentive programs, OSHA has stated that “employers must not use incentive programs in a way that penalizes workers for reporting work-related injuries or illness.” Instead, OSHA recommends incentive programs that reward for employee participation in safety program activities and evaluations, completion of employee training, and safety walkthroughs and identification of hazards.
With respect to drug testing programs, OSHA has stated that “drug testing conducted under a state worker’s compensation law or other state or federal law” does not violate the new rule. OSHA also clarifies that when evaluating a drug testing program, its “central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.”
For example, an employee who drug tests an employee who reported an injury he sustained as by-stander being drug tested would be in violation of the rule because the injury could not possibly have been caused by drug use. Conversely, drug testing an employee who is injured when he inadvertently drives his forklift into another piece of equipment would not be in violation of the rule because the employees “conduct – the manner in which he operated the forklift – contributed to his injury, and because drug use can affect conduct.” “Drug testing an employee who engaged in conduct that caused an injury is objectively reasonable because conduct can be affected by drug use.”
Finally, OSHA clarified that “OSHA will consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available. Therefore, at this time, OSHA may consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.”
Recommendation for employers
It is recommended that employers who have these type of programs in place review the guidance materials released by OSHA and determine whether their programs comply with the new rule.