OSHA Issues Anti-Retaliation Enforcement Procedures

Occupational Safety and Health Administration (OSHA)
enforcement efforts recently took effect for anti-retaliation rules that say
employers can’t discourage workers from reporting injuries or illnesses.

image source: http://sacemploymentlawyer.com/tag/medical-leave/

Under these provisions, employers are required to inform
workers of their right to report work-related injuries and illnesses, and
businesses can’t retaliate against employees for doing so.

“Although this guidance does not state anything
particularly new, employers should be aware that the new anti-retaliation rules
are now subject to enforcement and that policies and procedures should be
examined for compliance,” Miller told SHRM Online.

The anti-retaliation provisions went into effect on Aug. 10,
2016, but enforcement was delayed until Dec. 1, 2016.

Although the court could ultimately deem the provisions
unenforceable, OSHA has the green light to move forward with its enforcement
efforts—at least for now.

This simple change
in OSHA’s rulemaking requirements will improve safety for workers across the
country. One important reason stems from our understanding of human behavior
and motivation. Behavioral economics tells us that making injury information
publicly available will “nudge” employers to focus on safety.

Controversial
Provisions

There are three main points of controversy for employers to
note regarding:

  • Reasonable procedures for reporting injuries and
        illnesses.
  • Limits on safety incentive programs.
  • Limits on drug-testing policies.

“… it will examine whether there are unreasonable time
limits for reporting,” Miller said, such as requirements that are too
rigid and cannot reasonably be met.

OSHA will also evaluate whether the employer has
unreasonable methods for reporting—like requiring the employee to report an
injury in person at an inconvenient location, Miller added.

Safety incentive programs “must be structured in such a
way as to encourage safety in the workplace without discouraging the reporting
of injuries and illnesses,” OSHA said.

Much of the controversy has been around the drug
testing rule
.

OSHA said “blanket post-injury drug-testing policies
deter proper reporting” and instructed employers to limit post-incident
drug testing to incidents for which “employee drug use is likely to have
contributed to the incident, and for which the drug test can accurately
identify impairment caused by drug use.”

This may be thought of as a
“reasonable-suspicion-like” standard, Mavity noted. Such a standard
can create challenges for employers.

As an example, he said, marijuana has been shown to impair
judgment and reflexes without affecting gait or speech, so this rule puts a lot
of pressure on front-line supervisors to detect impairment when they are
already heavily burdened.

Moreover, there has been an increase in unlawful drug use
for the first time in years—particularly opiate abuse—and yet OSHA is telling
businesses to back off on drug tests, he added.

“It will be interesting to see how aggressively OSHA
enforces these new rules,” Miller said. “That enforcement will depend
in large part on how many retaliation complaints it receives.”

He added that employers should make sure their procedures
for reporting injuries and illnesses do not place unreasonable burdens on
employees.

Visit the
following website to find out if you are exempt, as well as if you
are required to prepare and maintain records under the undated rule by their
NAICS code. (https://www.osha.gov/recordkeeping2014/records.html)

Employment law is on the brink of many changes. To avoid
being caught in a lawsuit, your business has to be compliant with all those
changes as they occur. Your HR department must be knowledgeable on all levels,
especially when it comes to employee injuries or illnesses. For assistance with
any of your HR needs, Converge HR Solutions is here. We offer a wide range of
services, including HR outsourcing, consulting, and strategies for your
success. Visit our website for more information https://convergehrsolutions.com/. Contact us directly at info@convergehrsolutions.com or 610-296-8550.

Article
source: https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/osha-anti-retaliation-enforcement.aspx

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