OSHA Anti-Retaliation Rule

Earlier this year, OSHA announced a new anti-retaliation rule. While the rule is aimed at eliminating retaliation against employees for reporting injuries, it is causing concern for employers and their ability to utilize wellness programs and drug tests to encourage safe workplaces. In fact, confusion over the impact of this rule initially delayed the enforcement date from 8/10/16 to 11/1/16.

There is currently an active lawsuit in Texas federal court that was filed by a group of Employers against OSHA, which claims the rule is an overreach of OSHA's authority. As part of the lawsuit, OSHA has agreed to further delay the enforcement date to 12/1/16. Two main anti-retaliation aspects of the rule are as follows:

Post-Injury Drug Testing

OSHA has concluded that blanket post-injury drug test policies, which are historically authorized by state law, deter proper reporting and are therefore retaliatory. The theory is that an employee who wishes to avoid a drug test will avoid reporting an injury if the employer's policy requires blanket post-injury drug tests. OSHA does not eliminate the right to do any post-injury drug test, however. Rather, OSHA urges employers to find the balance between drug tests for a safe workplace vs. drug tests as a deterrent. OSHA acknowledges that an employer" need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor…" For example, drug use is likely not a reasonable possible cause of an injury from a bee sting or repetitive trauma; however drug use could potentially be a reasonable possible cause of injury from a forklift crash or slip-and-fall. Under the new rule, a drug test should be allowed in the latter circumstance, but not the former.

Safety Incentive Programs

OSHA also concluded that incentive programs that reward workers for achieving low injury rates discourage reporting. If you have a safety incentive program, make sure it focuses on incentives for recommending safety improvements. It should not provide incentives for low injury reports or in any way discourage reporting.

It is recommended that employers with blanket post-drug test policies, and safety incentive programs, update their policies prior to enforcement of this new OSHA rule.

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