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Effective December 1, 2016, the Occupational Safety & Health Administration (OSHA) incorporated into 29 C.F.R. 1904.35 two new provisions regarding retaliation against workers who report workplace injuries.
Section 1904.35(b)(1)(i) clarifies that the process for reporting an injury must be a reasonable one. To avoid a violation, employers must demonstrate both that there is a procedure in place for reporting work injuries, and that the procedure is not unduly burdensome on the injured worker. OSHA would likely deem it retaliatory for an employer to adhere to a strict, pre-determined deadline by which an injury must be reported in instances where an employee could not realistically have been expected to have done so.
Section 1904.35(b)(1)(iv) prohibits three specific forms of retaliation against employees for notifying an employer of an injury. First, an employer may not initiate disciplinary action against an employee merely for reporting an injury. Disciplining an employee for violating any safety procedures that resulted in an injury is still permitted, but not if it is used as a pretext for punishing a worker for reporting an injury. OSHA will investigate whether other employees have been similarly disciplined for the same infraction or whether the employer had a legitimate business interest for punishing the employee.
Also forbidden under Section 1904.35(b)(1)(iv) is the use of workplace incentive programs as a means for penalizing those who report work injuries. Though incentive programs that encourage safe workplace behavior are permissible, withholding the benefits of those programs simply because a work injury has been reported is not. Such actions would effectively punish a worker for reporting and injury and thereby serve to dissuade timely notification of injuries.
Finally, drug-testing as a form of discipline against those who report an injury is forbidden, but it may be used to investigate the cause of a workplace injury. The new rule requires an objectively reasonable basis for drug-testing employees who report work injuries, and the employer must have a legitimate reason to believe that an employee’s drug use contributed to the injury. OSHA will also consider whether other employees involved in the injury event were similarly tested. Testing performed in compliance with a state or federal regulation would not be considered retaliatory.
Most importantly for purposes of workers’ compensation disputes, OSHA would likely find it a violation to test an employee whose drug use could not reasonably have caused or contributed to the work injury.