“You keep using that word. I do not think it means what you think it means.” — Inigo Montoya, The Princess Bride
In May 2016, the U.S. Occupational Safety and Health Administration (“OSHA”) issued a final recordkeeping rule providing that OSHA 300 logs and 301 Incident Report forms electronically submitted to the agency would be posted on its website and available to the public.[1] As part of that final rule, OSHA included an “anti-retaliation” provision for employee reporting of workplace injuries and illnesses. Specifically, the rule provided in part that employers “must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately,” and that such a “procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”[2]
Why include such a provision in the rule when the Occupational Safety and Health Act already contains a non-retaliation clause that prohibits employers from retaliating against employees for reporting work-related injuries or illnesses? OSHA determined that since the electronic logs and reports would now be public, employers might under-record workplace injuries and illnesses by discouraging workers from reporting. Thus, the agency felt it needed to add an anti-retaliation clause to double down on its existing statutory provision.
In other words, OSHA takes retaliation seriously. But what would be considered “retaliation” under this rule? Aside from any kind of adverse employment action for reporting, OSHA implied that certain safety incentive programs and post-accident drug testing might create potential violations of the new reporting retaliation clause if they discouraged employees from reporting. The problem was employers were left without a clear idea of what kind of programs or testing could result in a retaliation violation.
So, OSHA issued a memorandum in October 2016 to supposedly clarify what it meant.[3] Post-accident drug testing would not be prohibited as retaliation, but there had to be a “reasonable basis” for conducting the test, such as whether other non-injured employees were tested and if the employer had a “heighted interest” in determining if use of drugs contributed to the injury or illness. Similarly, safety incentive programs would not be prohibited as retaliatory but could be if a benefit (like a cash prize or other award) was taken away from an employee for reporting.
Unfortunately, rather than clarifying when the implementation of a post-accident drug testing or a safety incentive program created a “retaliation” situation, the memorandum only added to the confusion employers felt. After a change in administration and with a couple of lawsuits pending, OSHA decided to issue another memo on the topic on October 11 of this year.[4] That memo states, unequivocally, that “[t]he purpose of this memorandum is to clarify [OSHA’s] position that [the anti-retaliation clause] does not prohibit workplace safety incentive programs or post-incident drug testing.” Thus, absent steps taken to specifically penalize an employee for reporting, any actions taken under a safety incentive or post-accident drug testing program that are aimed at promoting workplace safety and health would not be “retaliation.
So now do we know what the retaliation clause means? Perhaps. For safety incentive programs, the latest memo says that programs such as rewards for reporting near-misses or rate-based programs for having reduced injuries and illnesses during a given period generally are fine if they are not implemented in a manner that discourages incident reporting. Implementing other programs at the same time as a safety incentive program, such as rewards for identifying unsafe working conditions or training on reporting injuries and non-retaliation programs, could also help offset any inadvertent adverse actions. For post-accident drug testing, the memo states that testing to determine the cause of workplace incidents that result in harm is also fine if “all employees whose conduct could have contributed to the incident” are tested, not just the employees making the reports.
The takeaway? Employers implementing safety incentive programs and post-accident drug testing probably can take some comfort under the newest guidance memo that doing so will likely not trigger an OSHA retaliation violation as long as the programs are not implemented in a manner that adversely affects employees who report workplace incidents or discourages them from reporting. However, employers should ensure that their safety incentive and drug testing policies contain statements clearly prohibiting retaliation for reporting injuries and illnesses, and that other state and federal drug and alcohol testing requirements, such as those under the North Carolina Controlled Substance Examination Regulation Act and the federal Department of Transportation’s testing regulations (if applicable), are carefully followed.
Finally, employers should note that on July 30, 2018, OSHA issued a proposed rule to further amend and trim the May 2016 final rule, in part because of continued concerns expressed by the affected business community about the recordkeeping requirements and the Trump Administration’s focus on deregulatory actions. The comment period on the proposed rule closed on September 28, so stay tuned for possibly more changes to recordkeeping requirements.
Contact Soule Employment Law Firm at 984-242-0771 or contact David Hawley directly at dhawley@soulelawfirm.com.
[1] The 300 log and 301 forms are the materials certain employers are required to create and keep regarding occupational deaths, injuries, and illnesses.
[2] 29 C.F.R. § 1904.35(b)(1)(i).
[3] Interpretation of 1904.35(b)(1)(i) and (iv) (Oct. 19, 2016), available at https://www.osha.gov/recordkeeping/finalrule/interp_recordkeeping_101816.html.
[4] Clarification of OSHA’s Position on Workplace Safety Incentive Programs and Post-Incident Drug Testing Under 29 C.F.R. §1904.35(b)(1)(iv) (Oct. 11, 2018), available at https://www.osha.gov/laws-regs/standardinterpretations/2018-10-11.