OSHA's anti-retaliation policies

By Cotney Construction Law.

OSHA has provided an interpretation of employer actions as retaliatory and not permissible.

OSHA has recently provided an interpretation of employer actions that they will view as retaliatory and not permissible.  These include certain: (1) Disciplinary policies, (2) Post-accident drug testing policies, and lastly (3) Employee incentive programs.  Below is a brief explanation of these policies to help employers avoid violating OSHA regulations.

DISCIPLINE

OSHA has made it clear that employers are permitted to discipline employees who violate legitimate safety rules or reasonable reporting procedures.  However, employers are prohibited from disciplining employees for simply reporting a work-related injury or illness.  Examples of impermissible disciplinary actions include:

• Explicit reference to the reporting of a workplace injury or illness as grounds for the action.
• If the violation of a workplace safety rule is not applied uniformly to all employees who violate the rule, OSHA may infer an impermissible action via circumstantial evidence of unequal treatment.
• Employer rules about the time, place, or manner for reporting an illness or injury must have a legitimate business reason or OSHA may infer that it was used as a pretext.
• Relevant factors considered by OSHA in evaluating a legitimate business reason for a rule include:
  • The reasonableness of the rule
  • Whether the employee had a reasonable basis for the deviation
  • Whether the employer has a substantial interest in the rule and its enforcement
  • Whether the discipline imposed appears proportionate to the employer’s interest in the rule

DRUG & ALCOHOL TESTING

An employer is allowed to drug test employees who report work-related injuries or illnesses, so long as they have an objectively reasonable basis for testing, which is determined by:

1. Whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.
2. Whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness.
3. Whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due to the hazardousness of the work being performed when the injury or illness occurred.
4. Whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available.

• At this time, OSHA will only consider this factor for tests that measure alcohol use, not other drugs.

INCENTIVES

Section 1904.35(b)(1)(iv) does not prohibit an Employer from utilizing safety incentive programs.  Instead, this section prohibits an Employer from taking an adverse action against Employees for reporting work-related injuries or illnesses.  The important distinction here is that an employer can reward employees for complying with legitimate safety rules or participation in safety-related activities, however an employer cannot deny a reward to employees simply because someone suffered a work-related injury.

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Editor’s note: This article was first published on Cotney Construction Law and can be viewed here.

Author’s note: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.