By Cotney Construction Law.
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.
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:
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:
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.
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