On October 19, 2016, OSHA published a memorandum interpreting the new anti-retaliation provisions in Section 1904.35 as part of the new final rule – “Improve Tracking of Workplace of Injuries and Illnesses.” In conjunction with the memorandum, OSHA also provided example scenarios of incentive, disciplinary and drug-testing programs and how the new rule may be interpreted to those scenarios on its website.

Revised section 1904.35 requires employers to establish reasonable procedures for reporting a work-related injury or illness and prohibits employers from retaliating or taking adverse action against employees for reporting work-related injuries or illnesses.

While not explicitly stated in the final rule, OSHA made clear in the rule’s regulatory history that the agency considered certain types of incentive programs, disciplinary programs and post-accident drug testing to deter employees from reporting work-related injuries or illnesses and would constitute a violation of the new provisions.  The new guidance issued last week explains the agency’s position in more detail and in some instances seems to be a reversal of earlier stated positions. OSHA states specifically, “the rule does not ban appropriate disciplinary, incentive, or drug-testing programs” and then outlines what appropriate programs would be according to OSHA.

Disciplinary Programs

According to OSHA, “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.”

OSHA provided several examples of instances of disciplinary programs that would violate section 1904.35(b)(1)(iv):

  • 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.

One of the examples provided by OSHA was an employer disciplinary program that would discipline an employee who is injured when he is stung by a bee for violating the company’s rule to “maintain situational awareness” and the employer only disciplines for violations of this safety rule when employees are injured. OSHA would consider this a violation of section 1904.35(b)(1)(iv).

On the other hand, 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 section 1904.35(b)(1)(iv).

OSHA also clarified that employers who discipline 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. For example, an employee twists his ankle at work but does not immediately realize he is injured and the next morning his ankle is swollen and he reports his injury. Disciplining an employee for failing to report the injury “immediately” would violation section 1904.35(b)(1)(iv).  However, if this same employee waits a week once he realizes his ankle is swollen and he has suffered a work-related injury then disciplinary action in this case would not be a violation.

A key aspect for any employer disciplinary program will be consistency and whether the employer applies the policy consistently to all employees – those injured and not injured.

Incentive Programs

According to OSHA, “employers must not use incentive programs in a way that penalizes workers for reporting work-related injuries or illness.” Rather, 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.

OSHA provides an example of a cash prize raffle for each month without a lost time incident. “If the employer cancels the raffle in a particular month simply because an employee reported a lost-time injury without regard to the circumstances of the injury, such a cancellation would likely violation section 1904.35(b)(1)(iv) because it would constitute adverse action against an employee simply for reporting a work-related injury.”

 Drug-Testing Programs

OSHA appears to have slightly reversed course in the area of post-accident drug testing. Initially, the agency took the position that drug-testing in compliance with state and federal law or reasonable suspicion drug testing was permissible, but it was not clear that testing in compliance with worker’s compensation laws would also be permissible.  The agency has now made clear that “drug testing conducted under a state worker’s compensation law or other state or federal law” does not violate the new rule.

The memorandum does reaffirm the agency’s position that “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.” OSHA offers an example of an employee who reports a injury sustained as by-stander being drug tested – this would be in violation of the rule because the injury could not possibly have been caused by drug use.

In contrast, drug testing an employee who is injured when he inadvertently drives his forklift into another piece of equipment would not be in violation of section 1904.35(b)(1)(iv) 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.”

In the final rule, OSHA indicated that only drug tests that can indicate impairment at the time of the injury or illness would be permissible. The only test capable of such a determination is an alcohol test.  However, in the memorandum, 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.”

For further analysis on OSHA’s new guidance as it relates to employer drug testing programs please see a recent post by Kathryn J. Russo on the Drug & Alcohol Testing Law Advisor.

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Photo of Tressi L. Cordaro Tressi L. Cordaro

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state…

Tressi L. Cordaro is a Principal in the Washington, D.C. Region office of Jackson Lewis P.C. She is co-leader of the firm’s Workplace Safety and Health Practice Group. She advises and represents employers on occupational safety and health matters before federal and state OSHA enforcement agencies.

Ms. Cordaro has advised employers faced with willful and serious citations as the result of catastrophic events and fatalities, including citations involving multi-million dollar penalties. Ms. Cordaro’s approach to representing an employer cited by OSHA is to seek an efficient resolution of contested citations, reserving litigation as the option if the client’s business objectives cannot otherwise be achieved. As a result, she has secured OSHA withdrawals of citations without the need for litigation.

Ms. Cordaro’s unique experience with government agencies involved in OSHA enforcement enables her to provide employers with especially insightful guidance as to how regulators view OSHA compliance obligations, and evaluate contested cases.

Ms. Cordaro served as the Presidentially-appointed Legal Counsel and Special Advisor to the past Chairman and Commissioner Horace A. Thompson, III at the U.S. Occupational Safety & Health Review Commission (OSHRC) in Washington, DC, the agency that adjudicates contested federal OSHA citations. As the Commissioner’s chief counsel, Ms. Cordaro analyzed all cases presented to the OSHRC and advocated the Commissioner’s position during decisional meetings.

In addition, Ms. Cordaro worked at the U.S. Department of Labor’s Occupational Safety & Health Administration developing OSHA standards, regulations and enforcement and compliance policies, with emphasis on the construction industry. She has in-depth experience on technical issues including, in particular, issues related to cranes and derricks in construction.