The Occupational Safety and Health Administration (OSHA) announced on July 13, 2016, that the anti-retaliation provisions included in the revised recordkeeping regulation, 29 CFR Part 1904, will not be enforced until November 1, 2016. The provisions were originally scheduled to go into effect on August 10, 2016.
As we discussed in previous articles, the recordkeeping regulation will include a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. 29 C.F.R. § 1904.35(b)(1)(iv). In the preamble to the final regulation, OSHA identifies post-accident drug testing and safety incentive plans as programs that may result in impermissible retaliation against employees who report injuries. As discussed further below, OSHA’s statements on these issues have caused considerable confusion in the employer community. OSHA apparently plans to issue additional compliance guidance to clarify these and other issues.
According to OSHA, drug testing “is often perceived as an invasion of privacy” and “blanket post-injury drug testing policies deter proper reporting.” At the same time, OSHA acknowledges evidence from employers regarding the safety benefits of drug testing. As such, the anti-retaliation provision “does not ban drug testing of employees,” but “does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.” Employers 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.” 81 Fed. Reg. 29672-73.
Many employers require drug testing when an accident results in an injury requiring medical treatment, and no analysis of whether “employee drug use is likely to have contributed” is typically performed. Rather, the drug testing requirement is applied neutrally any time medical treatment is required. The reason is simple: Requiring supervisors to exercise discretion as to whether drug use is “likely to have contributed” opens companies up to allegations that particular employees were drug tested unfairly or for impermissible reasons.
OSHA also addressed the “retaliatory nature” of certain types of incentive programs that deny a benefit to an employee or group of employees if a certain injury or illness rate is exceeded. The anti-retaliation provision does not “categorically ban all incentive programs,” but programs must be “structured in such a way as to encourage safety in the workplace without discouraging the reporting of injuries and illnesses.” OSHA added the following:
Therefore, it is a violation for an employer to use an incentive program to take adverse action, including denying a benefit, because an employee reports a work-related injury or illness, such as disqualifying the employee for a monetary bonus or any other action that would discourage or deter a reasonable employee from reporting the work-related injury or illness.
81 Fed. Reg. 29674.
These statements have led to uncertainty because employers do not know if their current incentive programs are permissible. This is particularly true with regard to programs that apply company-wide or to large groups of employees and include meeting injury and illness rate goals as one factor. In previous compliance guidance, OSHA approved certain types of incentive programs for companies in the Voluntary Protection Program, and it is not clear whether those types of programs are still permissible. Also, terminating these programs mid-year may cause employee morale issues. For unionized workplaces, employers may not be able to terminate programs unilaterally.