Many employers are unaware that OSHA recently revised numerous procedural rules as part of an ongoing enforcement campaign. The new rules dramatically increase the size of penalties for OSHA violations. OSHA also created new rules regarding drug testing, injury reporting and employer incentive programs that run contrary to many employers’ well-established workplace policies and procedures.
Given these recent changes and OSHA’s enforcement agenda, employers are at increased risk for inspections and citations. One of the most common triggers for an OSHA inspection is an employee complaint. Terminated and otherwise disgruntled employees will often call OSHA to complain about workplace hazards, which frequently triggers an on-site inspection into whether the company is properly following regulations.
OSHA also has numerous special emphasis programs that target specific hazards, such as fall hazards, electrical hazards and heat/cold stress. If your employees work outside in the heat/cold or are involved with electrical work or working on ladders/getting on a roof, you should be especially careful that your safety policies are current and training is up to date. This is one area where an ounce of prevention is truly worth the investment.
Increased Penalties & Drug Testing
Effective Aug. 1, 2016, the penalties of non-compliance with OSHA regulations increased by 78 percent (see chart). On average, OSHA issues approximately three to five citations per inspection. With OSHA’s increased enforcement agenda, employers can now expect to see typical penalties in the $30,000 to $60,000 range and penalties well into six figures for repeat or willful offenders.
OSHA’s new rules also prohibit an employer from discharging or discriminating against an employee for reporting a work-related injury or illness. OSHA’s Preamble to the Final 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 this prohibition to any “blanket post-injury drug testing policies that deter proper reporting,” concluding that drug-testing alone constitutes an “adverse employment action.”
OSHA instructs employers to “limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” OSHA explains with examples: it “would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.”
OSHA’s interpretation of its new rule calls into question the widespread use of mandatory post-accident drug testing programs. While federal courts may not uphold OSHA’s reasoning that a drug test, standing alone, is a form of an “adverse employment action,” employers should be mindful of their policies and should consider whether to update those policies to avoid scrutiny by OSHA.
Incentive Programs
The new rule similarly condemns employer safety “incentive programs” as form of retaliation. This position is consistent with OSHA’s past rulings and guidance on employer incentive programs, but goes further in widening its prohibition on incentive programs even when they are part of a broader compliance program.
The new rules explain that “it is a violation of paragraph (b)(1)(iv) for an employer to take adverse action against an employee for reporting a work-related injury or illness, whether or not such adverse action was part of an incentive program.” OSHA’s interpretation prohibits all programs in which employees are denied a benefit on the basis of any injury or illness report. For example, many employers provide a “safety bonus” if there are no workplace injuries. OSHA’s position is that such a “safety bonus” does not improve safety, but rather chills employees from reporting injuries because they want to receive the bonus.
However, OSHA does not object to an incentive program that makes a reward contingent upon, for example, whether employees correctly follow legitimate safety rules, rather than whether they reported any injuries or illnesses. OSHA further encourages incentive programs that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents or ‘‘near misses.’’
Accordingly, employers should consider OSHA’s new interpretation when reassessing their incentive programs to ensure they are offering a benefit or reward based on promoting a safe workplace, and not just penalizing employees for getting injured.
New Retaliation Rules
In the Preamble to the anti-retaliation portion of the Final Rule, OSHA takes the position that its compliance officers can now issue citations to employers who discipline workers for reporting injuries and illnesses when it believes that no legitimate workplace safety rule has been violated.
Accordingly, OSHA intends to give its compliance officers, who have no formal training in employment discrimination law, the authority to issue citations based on perceived retaliation in the workplace. OSHA’s interpretation overturns the Agency’s long-standing statutory framework for retaliation complaints under Section 11(c) of the Act, under which employees must report allegations of retaliation to OSHA, which then uses specialized OSHA 11(c) investigators trained to investigate workplace retaliation claims. Unlike a Section 11(c) complaint, in which an employee must file a retaliation claim with OSHA within 30 days, a compliance officer has six months to issue OSHA citations. Further, under the new rules, the employee is not even required to file any complaint, in fact, the employee may not even believe that he/she suffered retaliation. Rather, in OSHA’s world view, all that matters is whether OSHA believes that there has been wrongdoing. We anticipate that the new interpretation will result in additional unfounded retaliation citations.
In its explanation to the Final Rule, the agency also posits that employer policies requiring an employee to “immediately” report an injury may also be retaliatory. OSHA believes that immediate-reporting policies will chill employees from reporting slow-developing or chronic injuries or illnesses, such as musculoskeletal disorders. According to OSHA, to be reasonable, a policy must allow for reporting within a “reasonable” time after the employee realized that he or she had suffered a work-related injury, rather than requiring that the injury be reported immediately following the occurrence of an injury. Of course, OSHA fails to define what it considers to be “reasonable.”
We anticipate that this will also lead to significant mischief related to worker compensation claims and whether injuries are truly work-related.
Electronic Submission of Injury and Illness Data
Unlike the anti-retaliation provisions in the new Rule, OSHA spends minimal time interpreting the Electronic Submission requirements, which are supposedly the real purpose behind the new rule. The Electronic Submission portion of the Final Rule requires individual employer establishments with 250 or more employees to submit information electronically from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.
Those establishments with 20-249 employees operating in what OSHA designates as “high hazard industries” must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.
OSHA intends to post this data on a publicly available website, which will be accessible by competitors, contractors, employees, and employee representatives.
James L. Curtis is a partner at the law firm Seyfarth Shaw LLP, concentrating his practice in environmental, safety and health law. Reach him at (312) 460-5815 or at [email protected].
