Without any real fanfare, OSHA has issued its promised guidance for employers on how to comply with the anti-retaliation and drug testing provisions of the new injury reporting regulations. The regulations were released this summer, but they included some provisions that left employers confused and uncertain over how to comply. In particular, the rules say OSHA can hold companies responsible if they are found to be discouraging employees from reporting injuries or retaliating against employees who do report. They also included warnings that blanket drug testing policies may be viewed as a way to keep employees from reporting.
There was so much outcry that a lawsuit was filed and the enforcement date has been delayed twice. Now it is set for December 1. In the meantime, OSHA promised to release further guidance.
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The guidance did come out, buried in a memorandum and posted on OSHA’s website. It is in dense, legalese which appears to be focused more on the lawsuit than on providing advice to the thousands of companies that now need to comply, but here is what it says:
Have Reporting Procedures – The regulations require that companies have a clear, reasonable policy allowing employees to report injuries. In order to cite a company under this section, OSHA must “show that the employer either lacked a procedure for reporting work-related injuries or illnesses, or that the employer had a procedure that was unreasonable.” The process can’t be a burden on employees or deter them from reporting.
OSHA says it would be reasonable to have employees report an injury to a supervisor by what ever means are convenient, it would be unreasonable to have them report in person. Similarly, it would be reasonable to have employees report injuries as soon as “practicable,” such as the same day or the next day. It would be unreasonable to require them to report immediately and to punish them if they don’t. (This is just common sense when dealing with muscular injuries that may not present themselves until hours after the shift has ended).
Don’t Retaliate Against Employees Who Report – OSHA must have reasonable cause to cite en employer for this. The memo states:
In this context, those elements include:
- The employee reported a work-related injury or illness;
- The employer took adverse action against the employee (that is, action that would deter a reasonable employee from accurately reporting a work-related injury or illness); and
- The employer took the adverse action because the employee reported a work-related injury or illness.
Discipline – OSHA makes clear that employers still have the ability to discipline employees, but only for violations of work or safety rules, not because they reported an injury. In the real world, OSHA may have a difficult time making the case that the company only disciplined to retaliate against an employee who reported an injury. However, the best way for the company to stay compliant is to make sure that employees who violate a rule are treated the same way no matter whether an injury occurred. For example, if a company does not do anything if an employee fails to wear PPE, but then fires the employee if an injury occurs while he was not wearing PPE, that may cross the line.
Drug-Testing – OSHA says requirements to drug test after an injury must be based on an objective, reasonable basis:
The 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. If so, it would be objectively reasonable to subject the employee to a drug test.
OSHA puts out a simple what-if to show how this might work: What if a worker is injured by a crane? If the company tests everyone who might have had a role, such as the crane operator and the signalman, that would probably be OK. If the company only tests the injured worker, that might be a problem.
OSHA also says companies that are following federal law or state workers comp laws requiring testing are safe.
Incentives – OSHA has some language on incentives and it is worth reading, but it shows that OSHA is still struggling with the concept of incentives. It says that, if a company holds a raffle every month that there are no injury reports and then cancels the raffle on a month where there is a report, that could be a violation. However, if the company holds a general raffle to reward overall safe practices, such as training or proper use of PPE, that would be OK.