The Occupational Safety & Health Administration (OSHA) announced that it is delaying enforcement of the new anti-retaliation rule. As we reported previously, the new anti-retaliation rule is set forth in 29 CFR 1904.35 and originally was planned to become effective August 10, 2016. OSHA announced that enforcement of the new anti-retaliation rule will be delayed until November 1, 2016.
The new anti-retaliation rule requires employers to:
- Establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. OSHA has indicated a procedure is not reasonable if it discourages or deters a “reasonable employee” from accurately reporting a workplace injury or illness;
- Inform each employee of the procedure for reporting work related injuries and illnesses; and
- Inform each employee that:
- Employees have the right to report work related injuries and illnesses; and
- Employers are prohibited from discharging or in any manner discriminating against employees for reporting work related injuries or illnesses.
The Occupational Safety and Health Act already prohibits discrimination by an employer against an employee for reporting injuries and illnesses under Section 11(C). However, OSHA previously was not able to independently take action under Section 11(C) until an employee filed a complaint within 30 days of the alleged act of retaliation. However, now under this new rule, OSHA will be able to cite and also issue penalties to any employer for retaliation even if employees do not file a complaint. As such, employers should consider reviewing handbooks and drug testing policies as well as workplace safety incentive programs to ensure compliance with this new anti-retaliation rule.
Employers should be aware that OSHA has indicated in commentary that most post-accident drug testing policies as well as certain safety incentive programs likely violate the new anti-retaliation rule. For example, OSHA indicated that drug testing policies should be limited to situations in which the alleged drug impairment is likely to have contributed to the accident, and for which the appropriate drug test can accurately identify impairment. As such, according to OSHA, it would not be reasonable to perform a drug test on an employee for a repetitive strain injury, heat exhaustion, or an injury caused by a lack of machine guarding or tool malfunction. OSHA has indicated such policies are likely only to deter reporting without contributing to workplace safety. Similarly, OSHA contends that certain employee incentive programs may violate the new anti-retaliation rule. Although employers might have incentive programs designed to encourage and improve workplace safety, such programs need to be carefully constructed so they do not appear to discourage reporting of work injuries and illnesses.
Please contact a member of our Labor & Employment section with any questions or concerns regarding this new anti-retaliation rule, drug testing policies, and workplace safety incentive programs.