The retaliation provisions of OSHA’s new “Improve Tracking of Workplace Injuries and Illnesses” rule are now scheduled to take effect on Dec. 1, 2016. OSHA states that the purpose of the rule is to intensify anti-retaliation enforcement and to encourage “accurate recording of work-related injuries and illnesses by preventing the under-recording that arises when workers are discouraged from reporting these occurrences.” Employers are now required to establish “reasonable procedures” for employees to report work-related injuries and illnesses. The rule specifically states that a procedure would “not be reasonable” if it would “tend to deter” or “discourage” accurate reporting. The most controversial aspect of the rule is an explicit statement in its preamble prohibiting employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.
Employers in so-called “state-plan” states, such as Washington, California, and Oregon, are required to comply with whatever new rules the state plan adopts. Such rules must be at least as strict as OSHA, but they are also are capable of being stricter. “State plan” states are currently working on adopting their rules and employers in “state-plan” states will be subject to whatever deadlines the state plans adopt. Those employers should begin reviewing their policies with the awareness that they will become subject to state rules that are at least comparable to the OSHA rule.
OSHA Anti-Retaliation Provisions – What’s New?
Under OSHA’s new rule, employers are required to inform employees that they have a right to report work-related injuries and illnesses, and that they cannot be discharged or discriminated against in any manner for reporting work-related injuries and illnesses. Further, the new rule gives OSHA authority to cite an employer for retaliation even if no retaliation complaint is made. OSHA has six months from the time of an inspection to do so. Previously, OSHA could only cite an employer for retaliation if someone complained and the complaint was raised within 30 days of the alleged retaliation.
“Reasonable Procedures” and Post- Accident Drug Testing
OSHA interprets the new rule’s “reasonable procedures” requirement as making mandatory employee drug testing following an accident presumptively retaliatory, unless the drug testing is required by law. OSHA states that drug testing policies should limit post-incident testing to the following situations:
(1) employee drug use is “likely to have contributed to the incident”;
(2) employers have a “reasonable suspicion” that drug use was a contributing factor;
(3) there is a “reasonable possibility” that drug use was a contributing factor.
OSHA further advises that employers should only use drug tests that “accurately identify [the] impairment caused by drug use.” While OSHA’s list of situations where drug testing is appropriate appear to inflict inconsistent standards on employers, OSHA has at least made clear that drug tests are not presumptively retaliatory if they are required by law (e.g. Department of Transportation-required testing for CDL drivers), random, or part of a pre-employment drug testing scheme.
OSHA’s position regarding drug testing places employers in a difficult position. Employers need to carefully consider how they will handle post-accident testing as part of ensuring that they have a “reasonable procedure” for reporting injuries and illnesses as required by the new rule. This includes which apparently conflicting drug test standard best meets the employer’s safety needs and obligations.
Immediate Reporting Requirements
OSHA underscores its position that employer policies disciplining employees for not immediately reporting an accident or injury are unduly burdensome and unlawful. Employers must allow a “reasonable timeframe” for reporting, but OSHA does not state what a “reasonable timeframe” is. However, an OSHA settlement with U.S. Steel on July 15, 2016 may shed some light onto OSHA’s expectations. In that case, U.S. Steel agreed to rescind its immediate injury reporting requirement and replace it with a requirement that employees report any injury within the earlier of: (1) 8 hours of becoming aware of the injury or; (2) before leaving the steel plant after becoming aware of the injury. Employers who follow the policy settled upon in U.S. Steel are more likely to satisfy OSHA’s undefined “reasonable timeframe” requirement.
Litigation Challenging OSHA’s New Rule
In July 2016, a coalition of employers and trade groups filed suit in federal district court in the Northern District of Texas seeking (among other things) a declaratory judgment that OSHA’s new rule is unlawful to the extent that it prohibits or otherwise limits “routine mandatory post-accident drug testing programs.” The plaintiffs also moved for a preliminary injunction to preclude OSHA from implementing or enforcing any provisions of the new rule that would otherwise prohibit post-accident drug testing programs. By an order of the court filed on Oct. 18, 2016, the court stated that OSHA had agreed to postpone the implementation date of its new rule by another month, until Dec. 1, 2016, to give the court time to receive and consider additional briefing. Should the court grant the plaintiffs’ motion for a preliminary injunction, the new rule’s implementation by federal OSHA, as well as “state-plan” state counterparts, may be further postponed. At this time, the court is only considering a preliminary injunction against OSHA, and as such, its ruling will be temporary until the court considers the issue of a permanent injunction at a later date.
OSHA’s new anti-retaliation provisions are scheduled to go into effect on Dec. 1, 2016, although that date could be effected by pending litigation. Employers subject to federal OSHA should prepare to comply with OSHA’s anti-retaliation provisions, and include developing plans to address conflicting drug test and undefined “reasonable timeframe” standards. Employers subject to state-plans will not be subject to the Dec. 1, deadline at this time, but likely will be faced with similar state requirements within 6-18 months of the federal rule’s implementation.