- OSHA’s Anti-Discrimination/Retaliation Rules Become Effective November 1 and Cover More Than Just Drug Testing
- October 12, 2016 | Author: John D. Surma
- Law Firm: Adams and Reese LLP - Houston Office
- The focus of the vast majority of articles and publications about the new recordkeeping rules relates to OSHA’s “new” prohibition against mandatory post-incident drug and alcohol testing. In short, these new anti-discrimination and anti-retaliation rules come into effect on November 1, 2016, and will effectively ban a number of common practices adopted by many employers. While OSHA interprets this rule as prohibiting mandatory post-accident drug testing, concluding that such tests discriminate against employees on the basis of injury and illness reporting, that is not the full extent of impact the new anti-discrimination and anti-retaliation rules will have on most employers. Employers need to reconsider the entire range of responses they have to employee reports of occupational injuries and illnesses or risk exposure under these new rules.
Section 1904.35(b)(1)(iv) prohibits an employer from discharging or discriminating against an employee for reporting a work-related injury or illness. The preamble to this rule interprets the regulation broadly to prohibit any “adverse action that could well dissuade a reasonable employee from reporting a work-related injury or illness.” OSHA applies the prohibition to any “blanket post-injury drug testing polic[y]” concluding that drug-testing alone constitutes an “adverse employment action.” 1
As mentioned at the outset, while many employers and safety professionals have focused on the prohibition against mandatory post-incident drug testing, OSHA’s perspective on the issue of discrimination and retaliation against employees who report occupational injuries and illnesses is much broader. In prior publications, both related to the new recordkeeping rules and related to the reporting rules implemented on January 1, 2015, OSHA has outlined a number of relatively common practices it views as discriminatory and/or retaliatory. The activities deemed by OSHA to have a discriminatory and/or retaliatory effect on employees reporting work-related injuries and illnesses include the following:
- Demanding that employees report illnesses and injuries within a certain time after being injured or becoming ill (i.e., requiring employees report injuries before the end of their shift).
- Requiring employees report injuries and illnesses in-person to someone at a distant location (i.e., requiring field employees to report to someone in the office as opposed to their supervisor in the field).
- Terminating employees who are injured because they failed to abide by the employer’s safety rules.
- Disciplining employees who report injuries or illnesses or terminating employees who have more than X injuries.
- Enforcing vague safety rules like “situational awareness” and “work carefully” only after an employee is injured.
- Enrolling employees in “Repeat Offender” programs.
1 There is a limited safe harbor against this prohibition that allows an employer to require mandatory post-incident drug and alcohol testing in the event the employer is required by state or federal law or regulation (i.e., mandatory post-incident testing of DOT drivers). As drug-free workplace statutes generally are not mandatory, they likely will not provide an employer with a safe harbor to this general prohibition. Similarly, a requirement in an employer’s workers’ compensation policy that all workers’ compensation claimant be drug and/or alcohol-tested likely will not provide an employer with a safe harbor to this rule.