Understanding Anti-Retaliation Protections Under OSHA’s Final Rule For Reporting Workplace Injuries

Last month, we dropped the bomb about automatic post-accident drug testing being in violation of the anti-retaliation provisions of OSHA’s new final rule to Improve Tracking of Workplace Injuries & Illnesses. It left many employers scrambling to evaluate their own post-accident policies and update them to remove language that mandated blanket drug testing anytime an illness or injury was reported, regardless of the cause.

As we continue to analyze OSHA’s new final rule and determine what it means to employers, more and more issues are coming up surrounding the anti-retaliation part of the rule, specifically as it relates to disciplinary policies and employee incentive programs.

The Rule’s Anti-Retaliation Protections Are Serious

And OSHA means business. The short of it is that it is against the law to fire, retaliate or discriminate against a worker for reporting a workplace injury or illness. Further, employers cannot have disciplinary policies – written or unspoken – that would cause workers to fear retaliation.

Previously, if an employee filed a complaint under the Whistleblower Act with OSHA within 30 days of retaliation, OSHA could then launch a formal investigation and cite a violation. Now, OSHA can intervene even if a claim has not been filed. While some critics argue that this is overstepping, the agency’s reasoning is that many workers may not know how to file a complaint, or may even fear further retaliation if they do. It’s OSHA’s way of protecting workers who are unable to protect themselves.

It’s still unclear how the agency will be alerted to potential retaliation in cases where there is no whistleblower claim, but the message is clear: retaliation will not be tolerated under any circumstances.

Discouraging Reporting Is Also Against The Law, But The Specifics Are Unclear

Here’s where the lines really begin to blur. The interpretation of the rule goes much more in-depth about also not discouraging workers from reporting an injury, and how many companies with employee incentive programs around safety may be violating the rule. Similar to how mandatory drug testing may discourage workers from reporting an injury due to embarrassment or drug use being exposed, incentive programs may also discourage a worker from making a report because of peer pressure and the desire to gain a reward.

The problem comes from the overwhelmingly positive data surrounding effective employee incentive programs. It is possible to reward employees for following safety procedures, attending safety training, reporting safety concerns, etc. without discouraging them from reporting when actual injuries or illnesses occur. However, it is a gray zone, and even OSHA has admitted that once the provisions officially go into effect on November 1, 2016, they will review potentially suspect incentive programs on a “case-by-case basis.”