-By Gary Auman –
The new Occupational Safety and Health Administration’s electronic recordkeeping rule to improve tracking of workplace injuries and illness became effective on January 1, 2017. The rule includes provisions to protect those who report injuries or illnesses from retaliation by their employer, and these provisions went into effect on December 1, 2016. Because these provisions are so critical and have been the subject of much controversy, I have delayed my planned article on the remaining five steps for a good safety program until the June 2017 issue of Frame Building News (the first five steps were covered in the January 2017 Safety Update).
Since the rule went into effect, much speculation on whether the new administration will enforce these new rules or take steps to eliminate or circumvent them has ensued. Because the provisions were part of the electronic recordkeeping standard, which was adopted under the formal Administrative Procedures Act of 1946, they cannot be eliminated with the stroke of a pen. But the new Secretary of Labor and the new OSHA administrator can set parameters for their enforcement.
Should the new administration offer even guidelines for the enforcement of part or all of the new anti-retaliation provisions, they will not be put into effect for some time. In the meantime, all employers are bound by the new rules, and OSHA has issued several interpretive documents regarding them. OSHA still has to prove that a company rule for reporting workplace injuries or illnesses that appears to be retaliatory to employees was established to discourage employees from reporting workplace injuries.
Procedures for Reporting Work-Related Injuries and Illnesses
The first requirement under the new rules is that employers must establish and train their employees on procedures for reporting workplace injuries and illnesses. The procedures must be easy to understand and must be reasonable. For example, OSHA will consider a prompt-reporting rule—which mandates discipline of an employee for late reporting, especially when the employee could not reasonably have reported the injury or illness earlier—to be a violation of section 1904.35(b)(1)(iv). This will be especially true if there is no reasonable business purpose for the prompt reporting requirement. OSHA will consider a reporting procedure reasonable if it is not unduly burdensome and would not deter a reasonable employee from reporting.
In a memorandum for regional administrators dated October 19, 2016, OSHA (2016) stated that “while employers have an interest in maintaining accurate records and ensuring that employees are reporting work-related injuries and illnesses in a reasonably prompt manner, these interests must be balanced with the importance of accurate injury reporting, and therefore employers’ reporting policies must be designed so as not to discourage employees from reporting.” In other words, if a company’s injury and illness reporting policies are complicated or time restrictive, while being connected with disciplinary measures that discourage an employee from reporting an injury or illness for fear of not correctly following all the steps in a timely manner, the company will likely be cited for violating this standard.
Another concern under the new rules is the prohibition against disciplining an employee for violation of a safety rule when the violation results in an injury. In the same informational memo referred to above, OSHA has reminded employers as well as its own regional directors that the new standard does not prohibit employers from disciplining employees who violate safety rules; it does prohibit employers from disciplining employees simply because they reported a work-related injury or illness.
If OSHA cites an employer for disciplining an employee for violating a safety rule, when that violation resulted in a report of an injury, OSHA has to prove that the discipline was for reporting the injury, not for violating the safety rule. In other words, OSHA has to prove that the alleged rule violation was merely a pretext for being able to discipline the employee for reporting the injury. OSHA points out that circumstantial evidence may be sufficient to prove retaliation.
What does an employer need to do to avoid such a result? As I have stated many times, every employer needs to have a safety enforcement program. From a safety perspective, an employer will not be judged “a reasonably responsible employer” if the company provides safety rules but does not ensure that its employees comply with them.
In order to have an effective safety communication and enforcement program, you must first determine the hazards to which your employees will be exposed. Second, you must develop rules for protecting your employees from those hazards. This might include guards, the use of personal protective equipment, or the adoption of administrative controls. Third, you must communicate those rules to all of your employees and remind them that they will receive discipline up to and including termination from employment for violating those rules. Fourth, you must be sure they understand the rules and their obligations to comply with them. Fifth, you must establish an audit program to monitor your employees’ compliance. Sixth, you must issue discipline and provide retraining relevant to each safety violation, no matter the level of seriousness. Finally, the discipline issued must be consistent and must be applied objectively.
If you follow these steps and enforce your safety rules consistently and objectively, you should not have a problem demonstrating that the discipline issued for the safety rule violation that led to the work-related injury or illness was a legitimate enforcement of your safety rules. One key here is to be able to show that you issue discipline as necessary to enforce your safety program, whether or not an injury resulted from the safety violation.
Mandatory Post-Accident Drug Testing
The announced prohibition of mandatory post-accident drug testing is probably causing the most confusion among employers. Many of the trade association members with whom I work require post-accident drug testing as part of their drug-free workplace program. They are now concerned that many of these programs, established for a legitimate purpose, will have to be eliminated. According to OSHA, mandatory drug-testing programs that are required by local, state or federal laws will be permitted because they are legally mandated. But what about other programs that also have a legitimate purpose but do not have the protection of a law?
Some confusion has arisen because of the apparently mixed interpretations of this prohibition given by staff in different OSHA area offices. It is not yet known how all the OSHA state offices will handle mandatory post-accident drug testing. The mandatory post-accident drug testing prohibition applies only to drug testing connected to injury reporting. So an employer may still require post-accident drug testing following accidents that involve property damage as well as for other identified reasons not related to injury reporting.
The same memorandum referred to above states that “section 1904.35(b)(1)(iv) only prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so. As in all cases under section 1904.35(b)(1)(iv), OSHA will need to establish the three elements of retaliation to prove a violation: a protected report of an injury or illness, adverse action, and causation. In the next paragraph of the memo OSHA advises that in evaluating whether an employer had a reasonable basis for drug testing following the report of a work-related injury or illness, OSHA will consider whether the employer had a reasonable basis for believing that the drug used by the employee who reported the injury could have contributed to the injury or illness.
Unfortunately, as OSHA has attempted to further clarify its rationale, it seems to be creating more confusion. OSHA provided an example of several employees who are injured in a crane accident in which the crane operator is not injured. In this instance, OSHA said, it would be reasonable to require all employees whose conduct could have contributed to the incident or injuries to be tested, whether or not they reported an injury. However, OSHA points out that it would not be reasonable to require a drug test only for those employees who reported an injury and not for other uninjured employees whose conduct could also have contributed to the incident. OSHA uses this example to underscore the main principle: that drug testing may not be used as a form of discipline against employees who report an injury or illness.
OSHA followed this illustration with the statement that “drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv).” Of course, this last statement would require an employer to separate those injuries reported because of an accidental occurrence from those occasioned by happenstance. I suggest that a blanket post-accident drug-testing policy following any accidental occurrence—whether with or without an injury—is the best way to reduce the chance of a problem.
The example given above is fairly easy to understand. Unfortunately, most on-the-job injuries involve only one employee, whose own actions or in actions cause the injury or illness to that same employee. So when viewed in its totality, it appears that OSHA’s October 19, 2016, memorandum reaffirms the prohibition against mandatory post-accident drug testing. Some OSHA area offices appear to have placed their own spin on this language. Some are stating that if state law provides for a drug-free workplace program, with a promise of lower workers’ compensation premiums for those who participate, the area director will consider that program to provide a non-retaliatory reason for mandating post-accident drug tests, even if the state law requires the employer’s drug-free workplace program to provide for testing only if a reasonable suspicion exists that drug use was involved.
Employers thus have several options. The first option, and the one least likely to result in a citation, is to stop requiring post-accident drug testing, unless such testing is specifically required by a state or federal law. Of course, if you take this option, you may institute a testing program in cases where a reasonable suspicion of a violation exists.
A second option is to ensure that any mandatory drug-testing program extends to all employees involved in any mishap while they are working, whether or not an injury occurs. This would be similar to the OSHA example with the crane. Any employee involved in any mishap would have to submit to a drug test or alcohol test or both. An employer who takes this approach should not make any exceptions, especially for employees involved in a mishap that did not cause an injury. This option, if properly crafted and implemented, should permit you to continue doing mandatory post-accident drug testing with little or no risk of drawing a citation, except in the rare situation where the employee’s injury occurs through mere happenstance, such as a bee sting.
A third option is to contact your OSHA area director or the head of your state OSHA to see what his or her approach to this prohibition will be.
A final option is to conduct business as usual, hoping that no employee or employee representative complains about your mandatory post-accident drug-testing program. Some companies will undoubtedly choose this approach, at least until the new administration establishes its own priorities.
Of course, inherent risks are associated with this option, and for this reason I do not recommend it.
This new rule is a broad one that affects all employers, whether or not they ever considered their post-accident testing protocol to be anything more than part of their accident investigation and prevention process—a tool for helping determine the cause of an on-the-job accident. That tool has been significantly affected, and all employers must look at their current post-accident procedures to ensure that they do not fall into the category of retaliatory conduct designed to inhibit or discourage employees from reporting on-the-job injuries or illnesses.
Author: Gary Auman of Dunlevey Mahan and Furry is legal counsel for the National Frame Building Association.
Occupational Safety and Health Administration. (2016). Memorandum for Regional Administrators from Dorothy Dougherty: Interpretation of 1904.35(b)(1)(i) and (iv). Retrieved from www.osha.gov/recordkeeping/finalrule/interp_recordkeeping_101816.html
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