OSHA’s Anti-Retaliation Enforcement Delayed

Employers in Boston and throughout the U.S. will have additional time to make sure they are compliant with the new anti-retaliation rules handed down by the Occupational Safety and Health Administration (OSHA).sad1

The agency recently announced it would delay its enforcement of the action, which will have an impact on workplace drug testing and certain safety incentives. Instead of enforcing the action in August, as originally intended, the agency won’t start ensuring those anti-retaliation and record-keeping provisions are in place until November.

The new anti-retaliation rule is part of an effort to block companies from discouraging workers from reporting workplace illnesses or injuries.

This has long been a problem for employees seeking to avail themselves of the workers’ compensation benefits to which they are entitled following an on-the-job injury or illness.

One of the more controversial provisions involves avoiding employee drug-testing following a work-related accident unless there is specific reason to believe intoxication by drugs and/or alcohol contributed to the accident. Of course, if a worker is found to have been under the influence at the time of a workplace accident, they may be precluded from collecting Boston workers’ compensation insurance.

Not only must employers not retaliate against workers, they have to let workers know they are afforded specific protections against retaliation.

81 Fed. Reg. 29624 is the new rule. OSHA has indicated that it broadly interprets the new anti-retaliation rule to mean that post-accident drug testing is in and of itself retaliatory, as it discriminates against workers on the basis of illness or injury. The only way it might be acceptable is if there is specific proof or evidence to suggest a workplace injury or illness was caused by chemical impairment.

Further, OSHA has asserted that workplace incentive programs that offer benefits to workers who don’t report their workplace injuries or illnesses are retaliatory as well.

The new measure also broadens OSHA’s power, specifically giving compliance officers the ability to issue citations for retaliation. This serves to revamp the current statutory employment retaliation enforcement framework.

Although the agency was initially going to require companies to have the new rules in place by August 10th, the agency ended up receiving a flood of questions from employers – and a considerable amount of push back.

The discontent with the measure stems specifically from the drug testing provision and concerns that some safety incentive programs might cross the new line.

OSHA was quick to say it isn’t backpedaling on the new rule. However, it wanted to give employers more time to make sure they were compliant. It’s all part of a larger electronic reporting rule that fully takes effect Jan. 1, 2017. The electronic reporting rule requires all employers covered by OSHA to submit injury and illness reports to OSHA electronically. That information is then going to be made available to the public at-large via OSHA’s website.

Officials at OSHA say between now and November, they’ll be involved in a comprehensive outreach initiative to ensure employers have all the educational materials and guidance necessary to ensure compliance.

It’s worth underscoring that the agency hasn’t banned post-accident drug testing. However, it does limit it to cases in which worker drug use likely contributed to the cause of the accident AND where the available drug testing is able to accurately identify drug-induced impairment.

If you or someone you love has been injured a Boston work accident, call for a free and confidential appointment at (617) 777-7777.

Additional Resources:

Higher OSHA Fines Raise Employer Concerns, Questions, July 25, 2016, By Bruce Rolfsen, Bloomber BNA

More Blog Entries:

OSHA: New Rule to Protect Workers From Silica Exposure, July 18, 2016, Boston Workers’ Compensation Lawyer Blog

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