Client Alerts
January 31, 2017

You may be retaliating against your employees without realizing it

Stites & Harbison Legal Update, January 31, 2017


OSHA’s much maligned anti-retaliation rule took effect December 1, 2016. The rule seeks to prevent certain post-accident drug testing policies and safety incentive programs which, in OSHA’s opinion, discourage employees from reporting injuries and accidents. Employers should review the terms of their drug testing policies and safety incentive programs because certain policies that may seem harmless on their face could now subject employers to penalties.

Post-Incident Drug Testing

The new rule bans some, but not all, post-incident drug testing. OSHA believes that mandatory post-incident drug and alcohol testing can discourage reporting. It contends that some employees do not report injuries and illnesses because they fear they will fail the ensuing drug test. To discourage this, the new rule prohibits policies that require mandatory post-incident drug testing regardless of the circumstances of the incident (“blanket policies”).

OSHA recently issued guidance clarifying the rule’s requirements. Under the new guidance, with a few exceptions, the rule requires drug testing to be limited to situations where there is a “reasonable possibility” that drug use contributed to the incident. The question that employers must then answer is “When is there a reasonable possibility?”

The short answer to this question is that there is a reasonable possibility drug use contributed to an incident anytime an employee’s conduct contributed to an accident. For example, there is not a reasonable possibility that drug use played a role where an employee suffers a bee sting or a repetitive strain injury. On the other hand, there is a reasonable possibility where an employee wrecks a forklift or forgets to wear personal protective equipment. The difference being, the employee’s conduct contributed to incident in the latter two cases.

To comply with this rule, employers need to ensure that their policies only require post-incident drug testing where there is a “reasonable possibility” that drug use contributed to the incident.

As mentioned, there are some exceptions to this rule based on state worker’s compensation laws. Employers will need to check their particular state’s laws to determine whether an exception applies to their policies.

Safety Incentive Programs

The new rule prohibits safety incentive programs which reward employees based on the lack of injuries or accidents in the workplace over a certain period of time. For example, if an entire shift loses a safety bonus due to the report of a single employee being injured, this will likely be considered unlawful discrimination.

Under OSHA’s new rule, an incentive program should be based on compliance with company safety rules, rather than lack of reported injuries or accidents. An employer can implement a compliance based program by creating a checklist containing the safety rules most important to its worksite and using the list to conduct periodic audits to ensure those rules are followed.

Employers using this type of incentive program may also want to consider creating a tiered incentive structure. For example, a group of workers who are compliant with all relevant rules could receive $100, while a less compliant group could receive staggered financial awards (e.g., $50 or $25) based on the number of violations.

The tiered approach is helpful because it encourages employees to continue to work safely even where they receive a violation early in the incentive period. When a program has a zero tolerance policy and an employee receives a violation on day two of the relevant time period, the incentive no longer holds sway over the employee.

Other incentive programs that OSHA identified as being permissible include:

  • Promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents or "near misses";
  • Reward employees for participating in safety and health committees;
  • Offer modest rewards for suggesting ways to strengthen safety and health; or
  • Throw a recognition party at the successful completion of company-wide safety and health training.

While this rule is currently in effect, employers should keep in mind that the federal lawsuit challenging the rule is ongoing. At this point, it is unclear when the lawsuit will be resolved. In addition, it is thought that the Trump administration will focus on aiding employers in compliance with OSHA regulations rather than enforcing those regulations. It remains to be seen whether this shift in focus will affect this rule.

In the meantime, to avoid the risk of facing increased penalties, including reinstatement and back wages, employers should review their policies and programs to ensure they are in compliance.

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