OSHA Rules Regarding Anti-Retaliation Measures

In 2016, the Occupational Safety and Health Administration (OSHA) issued a final rule regarding employer record-keeping regulations. While the main thrust of this rule was to require certain employers to electronically submit data related to workplace injuries and illnesses, the rule also set forth certain anti-retaliation measures that employers must take to ensure that employees will not be deterred from reporting work-related injuries and illnesses they experience. Below, we discuss OSHA’s rules regarding anti-retaliation measures and OSHA’s 2018 interpretation of this rule.

Specifics of OSHA’s 2016 Rule Concerning Anti-Retaliation Measures

On August 10, 2016, OSHA’s final rule concerning employer record-keeping of work-related injuries and illnesses suffered by employees became effective. This rule essentially requires all employers with 250 or more employees and employers in certain industries with between 20 and 249 employees to electronically submit data on employee workplace injuries and illnesses via OSHA Form 300, but it also requires that employers routinely maintain records of workplace injuries and illnesses. The purpose of this final rule is to allow OSHA to better identify employers that have high rates of occupational injuries and illnesses among their employees and to offer support to help these employers to reduce the number of employees that suffer from occupational injuries and illnesses.

While this final rule places the onus of accurately reporting workplace injury and illness data on employers, the final rule also includes provisions, which prevent employers from retaliating against an employee who reports an workplace injury or illness. The purpose of the anti-retaliation provisions in the final rule is ensure that employees are not discouraged from reporting their work-related injuries and illnesses for fear that they may suffer adverse employment actions such as demotion, docked pay, suspension, or termination. After all, OSHA can only receive accurate data from employers concerning occupational injuries and illnesses if the employers’ employees accurately report their work-related injuries and illnesses to their respective employer.

While the anti-retaliation measures in the 2016 final rule had a delayed enforcement date of December 1, 2016, this rule required employers to inform all employees of their right to report work-related injuries and illnesses. One way employers could satisfy this requirement is to post the “It’s the Law” worker rights OSHA poster from April 2015 or late in the workplace. The anti-retaliation provisions of the rule also require employers to set up a reporting procedure that does not discourage or deter employees from reporting occupational injuries or illnesses to them. To this end, employers may not create safety incentive programs as a means to deter employees from reporting workplace injuries or illnesses. While drug testing of employees is still permitted, employers, under the final rule, could not administer drug testing or threaten to administer drug testing to those employees who report work-related injuries or illnesses unless the drug testing was necessary to comply with state or federal law. Otherwise, under OSHA’s 2016 final rule, post-incident drug testing could be considered impermissible retaliation for reporting the work-related injury or illness.

2018 OSHA Anti-Retaliation Rule Clarification

Despite issuing its 2016 final rule prohibiting the use of safety incentive programs and post-incident drug testing as forms of retaliation against employees who report work-related injuries and illnesses, on October 11, 2018, the United States Department of Labor, the Department that oversees OSHA, issued a memorandum for the purpose of clarifying OSHA’s 2016 final rule. Specifically, the clarification now recognizes that implementing safety incentive programs is a permissible employer practice and is not to be generally understood as a retaliatory measure taken against employees to report workplace injuries and illnesses. Crediting safety incentive programs with promoting workplace safety, the memorandum clarifies that safety incentive programs are only to be viewed as retaliatory measures when the program discourages employees from reporting occupational injuries and illnesses by, for example, withholding a prize or bonus for reporting a work-related injury or illness.

Similar to its clarification on safety incentive programs, the United States Department of Labor also clarified that drug testing is an important measure in keeping workplaces safe. Consequently, the clarification states that employers may use the practice of drug testing, even if the drug testing occurs post-incident or post-reporting of the injury or illness, in the following circumstances:

  • Random drug testing
  • Drug testing unrelated to the reporting of a work-related injury or illness
  • Drug testing under the states workers’ compensation law
  • Drug testing under federal law and United States Department of Transportation Rule
  • Drug testing to evaluate the cause of a workplace incident that caused harm or could have caused harm to others

What Does the 2018 Clarification Mean for Employees?

Due to the clarification of OSHA’s 2016 final rule, it appears that it will be harder for employees to prove that employers employed retaliatory measures for reporting work-related injuries and illnesses. This clarification also makes it harder for OSHA to be able to cite an employer for taking retaliatory action against employees who report work-related injuries and illnesses.

Despite this new clarification, however, employers may still be held liable for retaliatory measures they take against employees who report work-related injuries and illnesses, occupational hazards, and discrimination. To determine if you have a viable employment law claim against your current or past employer, it is prudent to contact an experienced labor and employment law attorney.

Contact a Cherry Hill Labor and Employment Law Attorney for a Consultation About Your Retaliation Claim in New Jersey and Pennsylvania Today

If you have been the victim of employment retaliation because you reported work-related injuries, work-related illnesses, hazardous occupational conditions, discrimination, or any other illegal practice taken by your employer, you need to speak with a qualified attorney. The New Jersey and Pennsylvania labor and employment law attorneys at Begelman & Orlow represent clients throughout both New Jersey and Pennsylvania, including Cherry Hill, NJ Camden, NJ, Philadelphia, PA and Conshohocken, PA. We understand how challenging this time can be for you, which is why we will fight hard to protect your interests, and the interests of your loved ones, throughout the legal process. Call us at (866) 627-7052 or fill out our confidential contact form to schedule a consultation. We have an office conveniently located at 411 Route 70 East, Cherry Hill, NJ 08034, as well as offices located in Conshohocken, PA.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.

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