Remember that little (OK…actually very big) rule R.W. Smith recently told you about — the Occupational Safety and Health Administration (OSHA) anti-retaliation rule? Well, it went into effect December 1, 2016, and, to be blunt, it’s causing a lot of confusion and concern. Employers are struggling to understand how elements of the rule will affect the administration of post-accident drug testing, incentive programs, and disciplinary actions for safety infractions.

To break it down a little bit, there’s a certain section of the OSHA Act…Section 11(c) to be exact…that already prohibits retaliation against employees for reporting accidents or injuries. The new rule expanded on this a bit:

• Previously — Under Section 11(c), employees previously had 30 days in which to file a complaint.
• Now — Under the new rule, employees have six months in which to file complaints against employers.

OK…so employees have a longer reporting period. That’s not where the concern comes into play. What is concerning to employers is the new authority given to OSHA. In addition to requiring employers to submit injury and illness information electronically (effective January 1, 2017), the rule also expands the authority of OSHA to investigate and issue citations against employers for retaliating against employees who report occupational injuries or illnesses.

When it comes to enforcement of the new rule, here are a few pain points for employers:

• OSHA can issue a retaliation citation even if there hasn’t been an 11(c) complaint.
• OSHA can require abatement. Abatement is set by field offices, and at this point, Federal OSHA has not provided guidance to the field offices regarding what abatement is.
• OSHA doesn’t need evidence and reasonable cause to conduct an investigation.
• Circumstantial evidence is admissible. OSHA can consider lack of consistency in the way an employer enforces a policy as circumstantial evidence.

OSHA maintains this isn’t a new rule…it’s only a clarification of what’s already in existence.

A Closer Look

Now that I’ve laid the groundwork, I want to dive into the three programs OSHA will focus on:

• Disciplinary policies
• Post-accident drug testing policies
• Incentive programs

While most attention is widely focused on post-accident drug testing policies, it’s important to look at each of these programs.

Disciplinary Policies

Many employers use safety policy violations as disciplinary actions. This isn’t problematic unless the policy is unevenly applied. For example: The employer only enforces disciplinary action against employees who are ill or injured. So OSHA will be looking for negative actions like the following:

• Disciplinary action is taken regardless of safety rule violation. In other words, was the action taken simply because the employee reported an injury or illness?
• The reporting employee is disqualified from bonus or incentive programs due to an injury or illness.
• Safety rules are only enforced if an employee is injured. Or, enforcement is more severe against injured workers.
• Rules are vague (for example: rules that require employees to practice safe lifting, to exercise situational awareness, or to pay attention). If the rules aren’t spelled out, they could be considered vague.

What’s this mean? Employers should evaluate this policy. If employers enforce disciplinary actions disproportionately for safety rule violations and don’t discipline other unacceptable behaviors, such as attendance problems, insubordination, and poor workmanship, it can result in a general distrust of the safety policy and ultimately undermine the value an employer can achieve through a proactive safety policy.

Drug Testing Policies

The rule doesn’t prohibit drug testing of employees; it only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive wouldn’t be retaliatory. Employers should evaluate their drug testing policy to avoid the following unintended consequences:

• The policy shouldn’t limit reporting.
• Testing shouldn’t be limited to injuries. The incident is the focus, not the injury.
• Blanket policies that require post-accident testing for incidents where drug or alcohol use was not a likely contributor to the incident are potentially retaliatory. To use OSHA’s examples, post-accident drug testing for a bee sting or a soft tissue injury is potentially unreasonable.
• Impairment considerations are limited to alcohol (because that’s the only test for impairment available).
• Language in the policy must be clear. If the employer intends to test after any incident, the policy must reflect that. Action shouldn’t be restricted to testing only for an injury, or anytime medical treatment is required.

This rule may change how owners and contractors administer their Owner Controlled Insurance Program (OCIP) and Contractor Controlled Insurance Program (CCIP).

Incentive Programs

Safety incentive programs are widely used to reward employees for safe work. The benchmark for safe work is frequently measured by the number of injuries or accidents that occur in a division or on a project. The new anti-retaliation component of the recordkeeping rule specifies these programs should avoid the following traps:

• Incentives shouldn’t be dependent on the absence of accidents; the program needs to encourage safety, not discourage the reporting of incidents.
• Programs that withhold rewards due to the reporting of accidents or injuries are retaliatory by nature and can result in lack of reporting due to peer pressure and potential exclusion from achieving rewards.

Employers can examine existing incentive programs and use the new rule as an opportunity to revitalize policies and procedures to increase safety.

Training

On top of the policies, the new rule provides clarification for training on the reporting procedures by specifying that the training requirement is satisfied by posting the OSHA poster.

We Can Help

I understand that was a lot to read and digest, which is why a lot of employers are concerned right now. That’s where Holmes Murphy can help. We have team members dedicated to researching and analyzing the rule. If you have any questions, please don’t hesitate to either comment below or reach out to us directly. I’ve also found the following OSHA publication helpful: “Recommended Practices for Anti-Retaliation Programs.” Remember, you’re not alone in figuring out how this could impact you. We’ll be by your side each step of the way!