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OSHA Clarifies Anti-Retaliation Provision

On October 11, 2018, the Occupational Safety and Health Administration (“OSHA”) issued a Standard Interpretation that clarifies its position on workplace safety incentive programs and Post-Incident Drug Testing under 29 C.F.R. 1904.35(b)(1)(iv).  Previous guidance from OSHA indicated that workplace safety programs and automatic drug testing after incidents would be vulnerable to claims of retaliation under the Occupational Safety and Health Act (“OSH Act”).

The Standard Interpretation is guidance and does not have the force and effect of law, but it does show OSHA’s understanding of the law or regulations.  It states that the anti-retaliation provision set forth in the regulations to the OSH Act generally does not prohibit workplace safety incentive programs or post-incident drug testing.

Potentially problematic safety programs include those that reward low injury/illness rates.  According to the Standard Interpretation, evidence that an employer consistently enforces legitimate work rules, whether or not an injury or illness is reported, helps to show that the employer is serious about creating a culture of safety, not just the appearance of reducing rates.  Such safety programs would only violate the anti-retaliation provision if the employer withheld a bonus or other incentive to penalize an employee for reporting a work-related injury rather than for the legitimate purpose of promoting workplace safety and health.

Thus, rate-based incentive programs are permissible as long as they are not implemented in a way that discourages reporting.  If a prize or bonus is withheld because of a reported injury, OSHA would not cite the employer as long as the employer implemented adequate precautions to ensure that employees feel free to report an injury or illness.  The Standard Interpretation notes that having a statement of non-retaliation may not be enough, particularly if consequence of reporting is a lost financial opportunity.

However, an employer could avoid inadvertent deterrent effects of such a safety program by taking positive steps to create a workplace culture that emphasizes safety, not just injury rates.  The Standard Interpretation mentions the following as specific positive steps that could be taken to ensure that safety, rather than simply injury rates, are paramount:  (1) Having an incentive program that rewards employees for identifying unsafe conditions; (2)  Having a training program for all employees to reinforce reporting rights and responsibilities and non-retaliation policy; and (3) Having a mechanism for accurately evaluating the workforce’s willingness to report injuries and illnesses.

The Standard Interpretation also provides that post-incident drug testing does not necessarily constitute unlawful retaliation.   Instead, drug testing performed to evaluate the root cause of a workplace incident that harmed or could have harmed employees does not violate anti-retaliation provision in the OSHA regulations.  If an employer chooses to use drug testing to investigate an incident, the employer should test all employees whose conduct could have contributed to the incident, not just the employee or employees who reported the injuries.

The Standard Interpretation makes clear that it supersedes all earlier guidance on the issue.

What Does This Mean For You?  Based on OSHA’s earlier guidance on the anti-retaliation provision, many employers may have abolished safety programs, or changed drug testing policies to no longer include drug testing after an incident.  These policies may now be reinstated, as long as they follow the guidelines set forth in the Standard Interpretation.  To review the clarification further, you may view it at OSHA’s website.

If you have any questions or concerns about this update, or any other employment or labor law questions, please contact S. Whitney Rahman at swr@blakingerthomas.com or (717) 509-7237.

**This update is provided for informational purposes only and
should not be construed as legal advice or as creating an
attorney-client relationship where one does not already exist.**