This post was written by summer associate, Katelynn McCollough and edited by Labor and Employment attorney and Board of Directors President, Gene R. La Suer.
Employees may feel more secure in reporting injuries after a newly issued rule by the Occupational Safety and Health Administration (OSHA), but many employers will find previously compliant protocols are now vulnerable to OSHA citations.
The rule, made public in early May, seeks to improve employee willingness to report injuries and illnesses by discouraging retaliatory employer practices. Under the new regulation, employers will be required to inform employees of reasonable procedures for reporting work-related injuries and illnesses. Specifically, employees will need to be informed of their right to report such injuries and illnesses without fear of retaliation.
To further discourage retaliatory practices against reporting employees, commentary to the regulation offers insight into three common work-place policies: post-accident drug testing, safety incentive programs, and disciplinary procedures. Employers should pay special attention to these specific policies in order to be compliant with the regulation.
Post-Accident Drug Testing
It is not uncommon for employers to require an employee to undergo a mandatory drug screening after the occurrence of a work-place injury. However, according to OSHA, this type of policy can often act as a deterrent to reporting. While the forthcoming rule does not explicitly prohibit all post-accident drug testing, it is suggested that drug testing should not occur if the injury or illness is unlikely to have been caused by any form of drug use by the employee.
If the test will only show that the employee has used drugs in the recent past, but not definitively show the employee was impaired at the time of the injury, then the test should not be mandated.
Employers should avoid broad drug testing policies concerning work-related injuries. Instead, the use of drug testing is suggested only when:
- it is likely that the use of drugs contributed to the injury or illness, and
- the drug test is capable of identifying impairment of the employee, not just past use.
For example, a drug test would not be necessary when an employee reports back pain after a long day of repeatedly lifting heavy objects because the injury is not likely to have been caused by drug use.
The new rule will not prohibit the use of drug testing that is done in order to be in compliance with state or federal law and regulations. The newly issued rule is only concerned with policies that deter employee reporting through punitive means A policy requiring a drug test for every reported injury will likely be viewed as punitive. Take, for example, the employee with the back injury described above; the employer knows that drug use was not the cause of the injury, so the required drug test would solely be used as a means to discover past drug use that might still be in the employee’s system. The employer can then punish the employee, despite the fact that drugs were never a related cause to the incident. Under this type of policy, an employee may choose not to report an injury at all if they fear past drug use will appear on the mandated drug screening.
Well-intentioned employer incentive programs will also require re-examination under the regulation. The rule focuses on ill-structured reward policies that, while offering incentives to employees for following safety procedures, discourage employee reporting in the long run.
For example, an incentive program that enters employees into a drawing for a prize, but only if they have had no reported work-place injuries, may leave employees feeling reluctant to report and lose out on the opportunity for the prize.
As with the drug testing protocols, the new rule does not seek to completely abolish incentive programs. Policies that are capable of rewarding employees for safe practices without adversely effecting injury and illness reporting are acceptable under the new OSHA rule. Essentially, incentive policies should be structured in a manner that does not punish an employee who makes a report. Suitable reward programs could include rewarding employees that are proactive in spotting and addressing safety issues or entering employee names into a drawing if they attend and actively participate in safety training programs.
Finally, employers will want to revisit procedures that discipline employees for reporting injuries, even if no safety protocols were violated. These types of policies can act as a deterrent to employees who don’t want to be punished simply for making a report. The regulation allows employers to discipline employees who have legitimately violated a safety rule, but such disciplinary policies cannot be overly vague or be selectively applied.
An overly vague safety rule may simply state “stay alert” or “work safely.” Instead, employers should write rules that offer specifics, such as “Eye protection must be worn at all times past this point.” Employers should refrain from applying policies in a manner that only punishes employees who both legitimately violated a safety rule and reported their injury. Policies that are selectively applied encourage employees to refrain from making an injury report if they know that not reporting will mean escaping punishment.
Most employers will need to make little to no changes in their current disciplinary procedures, as OSHA as recognized that the majority of employers do not punish employees simply for reporting an injury. However, any procedures that do result in employee punishment simply for making an injury report should cease immediately.
Beyond revising these procedures, employers should be aware that the new rule will allow OSHA to cite an employer for retaliatory practices even when no employee has filed a complaint.
Previously, an employee would have to file a complaint under Section 11(c) of the Occupational Safety and Health Act. OSHA believed that this policy dissuaded employees from filing a complaint for fear of retaliation from the employer. To remedy this, the new rule allows OSHA to issue citations even in the absence of a Section 11(c) complaint.
Employers that revise these specific policies, and adequately communicate an employee’s right to report without fear of retaliation, will likely have no issues as OSHA transitions to the new regulation. While the new rule was just recently made public, the anti-discrimination and anti-retaliation portions of the rule are set to go into effect on Aug. 10, 2016. This leaves employers with only a small window of time to update policies. The remaining portions of the rule, which require certain industries to electronically submit injury and illness data, will become effective on January 1, 2017.