By Pat Miller, Rod Smith, Chuck Newcom and Matt Morrison

On October 19, 2016, OSHA issued guidance with respect to certain controversial provisions of its new anti-retaliation rules, originally published on May 12, 2016. As we have previously discussed, OSHA’s new rules prohibit employers from discriminating against employees who report workplace injuries and illnesses. While the language of the new rule may appear, on its face, relatively benign, OSHA slipped into the rule’s preamble some controversial comments with respect to employer practices the Agency believes run afoul of the new anti-retaliation rules. Specifically, OSHA is taking aim at any requirement that calls for the immediate reporting of injuries and illnesses. OSHA is also targeting employer safety incentive programs. Finally, and perhaps most importantly, OSHA has taken the position that post-incident drug and alcohol testing may violate the new regulations.

Not surprisingly, legal action challenging OSHA’s broad reading of its own rules quickly ensued. As the result of this federal litigation, OSHA postponed its implementation of the rules until it had the opportunity, ostensibly, to provide more outreach and guidance to employers. After a lengthy delay, OSHA has finally issued an interpretation purporting to clarify the three areas listed above.

With respect to a provision in the new regulations requiring “reasonable” procedures for reporting work-related injuries and illnesses, OSHA’s new guidance states that, in order to prove a violation of this provision, the Agency “must show that the employer either lacked a procedure for reporting work-related injuries or illnesses, or that the employer had a procedure that was unreasonable.” The language of the rule itself provides no guidance as to what a “reasonable” procedure might be, and OSHA’s guidance does little to provide any meaningful clarity. OSHA says only that it would be reasonable for employers to require employees to report injuries and illnesses “as soon as practicable after realizing they have the kind of injury or illness they are required to report to the employer, such as the same or next business day when possible.” (Emphasis added). In other words, OSHA appears to take the position that employers may run afoul of the new rules unless they provide employees up to the next business day following an injury or illness to make a report, and even then such a report must only be made “when possible.” This interpretation largely ignores the fact that employers often need to receive reports much earlier than “the next business day” in order to adequately address any safety concerns that may exist as a result of the event giving rise to the report. OSHA’s interpretation does not adequately explain how allowing up to twenty-four hours, or potentially more, to report an obvious injury constitutes “reasonableness,” especially in situations where the safety and health of other employees may be at risk. In short, while OSHA states that “employers’ reporting policies must be designed so as not to discourage employees from reporting[,]” its view as to what constitutes a “reasonable” reporting policy itself seems unreasonable in light of an employer’s interest in promoting a safe workplace.

With respect to safety incentive programs, OSHA notes in its new guidance that such programs are not strictly prohibited. The Agency says that employers are prohibited, however, from taking “adverse action against employees simply because they report work-related injuries or illnesses.” (Emphasis added). An example of such a prohibited action would be withholding the benefits of an incentive program from an employee simply because the employee reported an injury or illness. The Agency does note, however, that conditioning a benefit or gift on compliance with “legitimate safety rules or participation in safety-related activities would not violate” the provisions of 1904.35(b)(1)(iv), which prohibits employers from disciplining employees for reporting work-related injuries or illnesses. Employers are well-advised, then, to construct their incentive programs in such a way that encourages participation in safety initiatives and consigns “lagging indicators,” such as reportable injuries, to a lesser role.

Perhaps no portion of OSHA’s new rule has garnered as much negative attention as the Agency’s comments with respect to mandatory post-accident drug and alcohol testing. Unfortunately, the new interpretation provides scant evidence that OSHA is backing off its earlier statements that such testing is violative of the new rule. In fact, the Agency is doubling down on its opinion that employers who test employees who report injuries or illnesses must “have an objectively reasonable basis for testing,” and goes even further by questioning the very legitimacy of certain drug testing.

The important question, OSHA believes, is “whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.” Notably, OSHA states that one of the factors that it will review to determine if an employer had a reasonable basis for testing an employee who reports an injury is “whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due to the hazardousness of the work being performed when the injury or illness occurred.” We submit that all employers, regardless of the particular hazards involved in the workplace, have a “heightened interest” in ensuring that none of their workers are under the influence of drugs or alcohol, and that the test outlined by OSHA is inappropriate given the safety concerns inherent with impairment in the workplace.

What is even more concerning is OSHA’s statement that it will “only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available.” In other words, OSHA “will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.” OSHA attempts to explain this position by stating that “[t]he general principle here is that drug testing may not be used by the employer as a form of discipline against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illnesses in appropriate circumstances.” This position is truly at odds with the goal of employers in promoting drug-free workplaces. If an employer terminates an employee who reports an injury for testing positive for anything other than alcohol, OSHA’s position is that the employer may be in violation of OSHA’s rules because, in its view, tests for drugs other than alcohol cannot measure employee impairment at the time of the incident in question. Unfortunately, this position elevates OSHA’s unsubstantiated fears of employer retaliation above the long-heralded and laudable mandate of the Agency: the protection of the safety and health of workers.

In our opinion, employers have the absolute right to a drug-free workplace, and should not hesitate in the least in meting out appropriate discipline to employees who test positive for drugs. It is unfortunate that OSHA has seen fit to interpret a broad and vaguely-worded rule in such a way that may prohibit employers from protecting its employees from the presence of drugs in the workplace. It is also our opinion that OSHA’s recent interpretation on this issue is unreasonable, is not entitled to deference, and should not be enforced or upheld by any reviewing body. Employers are encouraged to continue their efforts to ensure drug-free workplaces.

Rod Smith, Pat Miller, Chuck Newcom and Matt Morrison are part of Sherman & Howard’s Labor & Employment Law Department. They routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.

Sherman & Howard L.L.C. has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.

©2016 Sherman & Howard L.L.C.                                                                                    October 24, 2016