The Occupational Safety and Health Administration (OSHA) recently published guidance explaining its new regulations and clarifying its position with regard to the new anti-retaliation provision. To be clear, the new anti-retaliation provision only reinforces the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. The guidance clarifies that an employer’s policies must not deter or discourage employees from accurately making such reports.

Specifically, OSHA is focusing on three areas: 1) discipline policies, 2) incentive programs, and 3) post-accident drug and alcohol testing. The new regulations initially were to be effective August 10, 2016. However, enforcement of the new regulations has been delayed until January 1, 2017.

Discipline policies

The OSHA guidance clarifies that employers are not prohibited from disciplining or even terminating employees that have violated legitimate workplace safety rules. However, employers are prohibited from disciplining any employee related to the reporting of a work-related injury. Thus, employers should be prepared to demonstrate a legitimate business reason for discipline of an employee who has reported a work-related injury or who failed to report a work-place injury.

OSHA also stresses that discipline for rule violations must be consistently applied regardless of whether the violation results in an injury. Often times, employers will not punish an employee for a safety rule violation that does not result in an employee being injured in the same manner as when the violation does result in a work-related injury. The OSHA guidance makes it clear that a work-related injury should not be a deciding factor to issuing discipline.

Incentive Programs

OSHA guidance stresses that safety incentive programs should not penalize workers for reporting work-related injuries by denying a benefit as a part of the incentive program. The new regulations do not prohibit incentive programs. However, incentive programs should focus on accident avoidance and reward employees for observing safety rules. Programs that withhold incentives because of a reported work-related injury or programs that are tied to the number or amount of reported injuries will be viewed by OSHA as retaliatory in nature and designed to discourage employees from reporting work-place injuries.

Alcohol/Drug Testing Policies

OSHA has found that employment policies requiring blanket post-accident drug and alcohol testing of every individual injured in a work-related injury are retaliatory in nature and can discourage or deter employees from reporting work-related injuries. OSHA’s new rule does not categorically prohibit post-accident alcohol or drug testing but requires such testing to be “objectively reasonable.” Specifically, the OSHA guidance states that the employer must have a reasonable basis for believing that alcohol or drug use by the employee could have contributed to the injury or illness. OSHA cautions that blanket post-accident testing has the potential to discourage injury reporting, may not demonstrate current impairment, and the reported injury may not be one that could be caused by impairment.

Employers should anticipate that OSHA will more closely scrutinize drug and alcohol testing policies. Further employers should consider taking the following actions with regard to post-accident testing:

• Eliminate blanket post-accident testing policies.
• Establish guidelines for testing. OSHA has given little guidance on when it is acceptable to conduct post-accident testing. Employers should implement guidelines for post-accident testing which include an individualized assessment of the facts and circumstances of the incident to determine if there is a reasonable possibility that drug or alcohol intoxication contributed to the incident. Employers should also avoid testing when the individualized assessment excludes possible intoxication as a cause.
• Consider the following factors in deciding whether to conduct post-accident testing: 1) the nature of the incident; 2) whether such incident is the type that may be caused by intoxication; 3) whether other employees involved in the incident were also tested or whether only the employee who was injured was tested; and 4) and any observations of the employee that may suggest impairment.
• Confirm procedures used by alcohol and drug testing facilities. If employers use an alcohol and drug testing vendor, employers should confirm with the vendor what tests are being conducted and what those tests demonstrate. OSHA disapproves of drug testing that detects use at some unspecified time in the past but does not detect impairment at the time of the incident.
• Consider bypassing the post-accident test. OSHA guidance confirms that post-accident testing is not required. Thus, if an employee’s conduct is severe enough to warrant termination without a drug or alcohol test, employers should consider bypassing the post-accident test and terminating the employee for the underlying conduct (consistent with other applicable law).

A link to the new OSHA regulations can be found here and a link to the guidance recently issued by OSHA can be found here.

Given these new changes, employers are advised to review internal policies and procedures to ensure compliance with the new OSHA regulations. If you have any questions on the new regulations, need to revise your handbook, have any questions about implementing changes to your current policies, or for more information about our Labor and Employment Litigation and Counseling practice, please contact us.