OSHA’s Memorandum Clarifies Anti-Retaliation Rule

By Lindsay Reynolds

In May 2016, the Occupational Safety and Health Administration (OSHA) published a final rule adding an anti-retaliation provision that prohibits employers from retaliating against employees for reporting work-related injuries or illnesses.[1] The final rule's preamble included a discussion about how the anti-retaliation provision applies to action taken under workplace safety incentive programs and post-incident drug testing policies.

The new anti-retaliation provision left many employers perplexed and unsure about permissible safety incentive programs and post-incident drug testing. On October 11, 2018, OSHA published a memorandum ("Memorandum") to clarify that OSHA does not prohibit workplace safety incentive programs or post-incident drug testing programs. The Memorandum provides that any action taken under a safety incentive program or post-incident drug testing policy would violate the rule only if the employer took action to penalize an employee for reporting a work-related injury or illness (e.g., withheld a prize or reward), instead of for the legitimate purpose of promoting workplace safety and health.

Safety Incentive and Drug Testing Programs

The Memorandum provides a safe harbor for incentive programs that result in positive action for reporting near-misses or hazards and encourages involvement in a safety and health management system. Because such incentive programs promote employee safety, it makes sense that they do not violate the rule.

"Rate-based" incentive programs are also permissible. A rate-based program focuses on reducing the number of reported injuries and illnesses by measures such as rewarding employees with a prize or bonus at the end of an injury-free month or evaluating managers based on their work unit's lack of injuries. One obvious concern about a rate-based program is that it may discourage employees from reporting injuries or illnesses when they occur, so the employees earn a prize or reward based on the false appearance that their department didn't have any injuries. Thus, rate-based incentive programs are permissible only so long as the program doesn't discourage reporting.

Employers can avoid any inadvertent deterrent effect of a rate-based incentive program by taking positive steps to create a workplace culture that emphasizes safety, rather than just counting injuries and earning a reward. Such steps include implementing:

  • an incentive program that rewards employees for identifying unsafe conditions in the workplace;
  • a training program for all employees that reinforces reporting rights and responsibilities and emphasizes the employer's non-retaliation policy; and/or
  • a mechanism for accurately evaluating employees' willingness to report injuries and illnesses.

 
Finally, the Memorandum clarifies that workplace drug testing is permissible under the rule, because drug testing may enhance employee safety. Examples of permissible drug testing include:

  • Random drug testing.
  • Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under state workers' compensation laws.
  • Drug testing under federal law.
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.

 
Next Steps for Employers

Employers with safety incentive programs should review their programs and implement adequate precautions to ensure that employees feel free to report an injury or illness. This must be more than a mere statement that employees are encouraged to report injuries and will not be retaliated against for doing so. Instead, employers should consider taking positive steps, as suggested by OSHA and as discussed above, to create a workplace culture that emphasizes safety.

Employers who do post-incident drug testing should review their policy and make any necessary changes in light of OSHA's clarification of permissible drug testing practices. Because post-incident drug testing creates the greatest potential risk for retailiation under OSHA, a policy that includes such testing should be designed to evaluate the root cause of a workplace incident and not to punish incident reporting. To avoid any inference of retaliation, it should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

If you would like further information on this OSHA rule or need help with employee safety policies, contact one of our labor and employment lawyers.

This update is prepared for the general information of our clients and friends. It should not be regarded as legal advice. If you have any questions regarding this update, or for more information about this topic, please contact an attorney in our Labor & Employment Practice Group, or the attorney with whom you normally consult.

 


[1] We previously released a Tonkon Tip discussing the changes, a copy of which can be found here.

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