In late October, OSHA’s Deputy Assistant Secretary, issued an interpretation memorandum designed to explain the anti-retaliation and injury reporting procedures in more detail. The interpretation offers clarification on what your organization must do in order to comply with the final rule.
With respect to reporting an injury, OSHA considers a reporting procedure to be reasonable if it is not unduly burdensome and would not deter a reasonable employee from reporting an injury or illness. If your procedure allows employees to report workplace injuries and illnesses within a reasonable amount of time after they realize they have experienced a reportable event, and the procedure does not make employees jump through too many hoops, it will be reasonable and comply with the final rule. In order for OSHA to issue a citation for reporting retaliation, it must demonstrate the well-established elements of retaliation. In this context, those elements include: (1) the employee reported a work-related injury or illness; (2) The employer took adverse action against the employee (that is, action that would deter a reasonable employee from accurately reporting a work-related injury or illness); and (3) The employer took the adverse action because the employee reported a work-related injury or illness.
With drug testing, the regulation does not prohibit employers from drug testing employees who report work-related injuries or illnesses so long as they have an objectively reasonable basis for testing, and the rule does not apply to drug testing employees for reasons other than injury-reporting. OSHA will not issue citations under section 1904.35(b)(1)(iv) for drug testing conducted under a state workers’ compensation law or other state or federal law. So, employers in Florida have another reason to establish a drug free workplace policy under the Florida workers’ compensation statute. So, post-accident drug testing is permitted if all workers involved in the accident are tested in order to gain insight into the cause of the accident. But drug testing an employee whose injury could not possibly be related to drug use, such as a repetitive strain injury, would be seen as retaliation.
With safety incentives, OSHA does not prohibit them but withholding a benefit—such as a cash prize drawing or other substantial award—simply because an employee reported an injury or illness would likely violate section 1904.35(b)(1)(iv). However, conditioning a benefit on compliance with legitimate safety rules or participation in safety-related activities would not violate section 1904.35(b)(1)(iv). Likewise, rewarding employees for participating in safety training or identifying unsafe working conditions would not violate the rule. However, using OSHA’s logic, an employer that goes beyond the reporting of an injury, and instead reviews the circumstances surrounding the injury or illness may objectively determine that there is a legitimate business reason for taking adverse action against the employee, or excluding the employee from a safety incentive.
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