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Employer Retaliation

Undermining Federal Anti-Retaliation Enforcement

By Doug Parker, Executive Director

There is a lot of news about the Trump Administration rolling back regulations, particularly those issued during the Obama Administration. What gets less news is their much simpler and quicker tactic: effectively eliminating regulations by refusing to enforce them. 

Earlier this month, federal OSHA appeared to be doing just that when it issued interpretive guidance to regional offices and state OSHA plans regarding enforcement of the anti-retaliation provisions of OSHA’s embattled 2016 “Electronic Recordkeeping Rule.”

The 2016 rule requires employers to have injury reporting procedures that are “reasonable” for employees, and it prohibits policies that would deter or discourage employees from reporting injuries. The rule addresses two common employer practices that are known to discourage employees from reporting workplace injuries: so-called safety incentive programs and post-accident drug testing. 

Safety incentive programs typically reward employees as a group with prizes or cash bonuses based on workplace injury rates. The 2016 rule prohibits “no-fault” safety incentive programs in which prizes are withheld when an injury occurs regardless of the circumstances or the role of the employee in the injury. Such programs inherently discourage injury reporting by creating peer pressure to not report injuries that could impact coworkers receiving benefits.

The rule also effectively prohibited the employer practices of conducting post-injury drug testing without a reasonable basis for concluding that drugs had a role in the incident, drug testing targeted at workers who were injured but not others involved in an incident, and drug tests that do not measure impairment. These practices are also used to punish employees and discourage reporting.

OSHA’s October 11 Memo does not overturn the rule – OSHA can’t do that without new rulemaking – but it is an attempt to undermine the heart of these provisions by limiting enforcement to circumstances where it can be proven the employer intended to discourage injury reporting. The memo permits these programs unless “the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.” The memo goes on to give employers a roadmap for avoiding citations by adding superficial changes to their incentive and drug testing programs.

I wish I could hold out California as a shining counter-example, but it has unfortunately done virtually nothing to even adopt the 2016 rule, despite its legal obligation to do so. 

The 2016 rule recognized the reality that these policies can deter injury reporting and provide opportunities to punish workers for reporting injuries. The October 11 memo does much to undo that recognition of how these programs work in the real world.