OSHA Buffers Against Retaliation

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Late in 2016 the Occupational Safety and Health Administration’s new injury-reporting rule took effect.

Critically, this new rule imposes significant changes to employers’ anti-retaliation obligations. OSHA has redefined retaliation to cover the three facially neutral rules that many, if not most, employers have in their workplace.

The rule prohibits disciplining employees simply because they report work-related injuries or illnesses without regard to the circumstances of the injuries or illnesses, such as automatically suspending workers who report an injury or assigning them points that have future employment consequences.

An example of a retaliatory disciplinary program, according to OSHA:

Employee twists an ankle at work but does not immediately realize that he is injured. The next morning, Employee’s ankle is sore and swollen, and he reports the injury. Employer disciplines Employee for failing to report his injury “immediately” as required by Employer’s injury reporting rules.

An example of a non-retaliatory disciplinary program, according to OSHA:

Employee twists her ankle at work but does not immediately realize that she is injured. The next morning, Employee’s ankle is painful and swollen and she realizes it is the type of injury her employer requires her to report. However, even though she easily could have reported the injury, she waited several weeks to do so. Employer disciplines Employee for failing to report her injury as soon as practicable after realizing she has the type of injury it requires her to report.

The rule prohibits using incentive programs to penalize workers for reporting work-related injuries or illnesses. If an employee reports an injury or illness and the employer subsequently denied a benefit as part of an incentive program, this denial may constitute retaliatory action against the employee for exercising their right to report an injury or illness.

An example of a retaliatory incentive program, according to OSHA:

Employer informs its employees that it will hold a substantial cash prize drawing for each work group at the end of each month in which no employee in the work group sustains a lost-time injury. Employee reports an injury that she sustained while operating a mechanical power press. Employee’s injury requires her to miss work for two days. Employer cancels the cash prize drawing for that month for Employee’s work group because of Employee’s lost-time injury.

An example of a non-retaliatory incentive program, according to OSHA:

Employer informs its employees that it will hold a substantial cash prize drawing for each work group at the end of each month in which all members of the work group comply with applicable safety rules, such as wearing required fall protection. Employee sustains a lost-time injury when he falls from a platform while not wearing required fall protection, and he reports the injury to Employer. Employer cancels the cash prize drawing for Employee’s work group that month because Employee failed to wear required fall protection. Employer actively monitors its workforce for compliance with applicable work rules and cancels the cash prize drawings when it discovers work rule violations regardless of whether the Employee who violated the work rule also reported an injury.

The rule prohibits using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness. Employers may not conduct blanket post-accident testing, but may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness. However, if employee drug use could not have contributed to the injury or illness, post-incident drug testing could constitute prohibited retaliation, as it would discourage injury reporting without contributing to the employer’s understanding of why the injury occurred.

An example of a retaliatory drug-testing program, according to OSHA:

Employer required Employee to take a drug test after Employee reported work-related carpal tunnel syndrome. Employer had no reasonable basis for suspecting that drug use could have contributed to her condition, and it had no other reasonable basis for requiring her to take a drug test. Rather, Employer routinely subjects all employees who report work-related injuries to a drug test regardless of the circumstances surrounding the injury.

An example of a non-retaliatory drug-testing program, according to OSHA:

Employee was injured when he inadvertently drove a forklift into a piece of stationary equipment, and he reported the injury to Employer. Employer required Employee to take a drug test.

Study these examples, as they will help you navigate the increasingly complex world of OSHA compliance in 2017 to avoid costly and complex retaliation complaints.

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