OSHA – Page 3 – Workforce

October 26, 2016June 29, 2023

OSHA Doubles Down Against Retaliation

OSHA has had a busy October.

First, it announced that it has delayed enforcement, until Dec. 1, of the anti-retaliation provisions of its injury and illness tracking rule.

According to OSHA, “The anti-retaliation provisions were originally scheduled to begin Aug. 10, 2016, but were previously delayed until Nov. 10 to allow time for outreach to the regulated community.” While I hate to be appear cynical, I can’t help but think that the pending lawsuit challenging the legality of these rules has something to do with this delay.

Second, even though OSHA keeps delaying these rules, it continues its efforts to educate employers and employees about them. On Oct. 19, OSHA published both a memorandum and example scenarios interpreting these new anti-retaliation provisions.

So, let’s take a look at the types of scenarios OSHA believes will violate, and will not violate, its new anti-retaliation provisions.

Disciplinary Programs

The rule prohibits disciplining employees simply because they report work-related injuries or illnesses without regard to the circumstances of the injuries or illnesses, such as automatically suspending workers who report an injury or assigning them points that have future employment consequences. The rule also prohibits disciplining an employee who reports a work-related injury or illness under the pretext that the employee violated a work rule if the real reason for the discipline was the injury or illness report.

Illegal Retaliation (according to OSHA):

Employee is injured when he is stung by a bee at work, and he reports the injury to Employer. Employer disciplines Employee for violating a work rule requiring employees to “maintain situational awareness.” Employer only enforces the rule when employees get hurt.
Employee twists his ankle at work but does not immediately realize that he is injured because his ankle is not sore or swollen, and therefore he does not report the injury to Employer. The next morning, Employee’s ankle is sore and swollen, and he realizes he has the kind of injury he is required to report to Employer. He reports the injury to the employer that day. Employer disciplines Employee for failing to report his injury “immediately” as required by Employer’s injury reporting rules.

Non-Retaliation (according to OSHA):

Employee reports a hand injury that she sustained while operating a saw after bypassing the guard on the saw, contrary to the employer’s work rule. Employee’s hand injury required her to miss work for two days. Employer disciplined Employee for bypassing the guard contrary to its instructions. Employer regularly monitors its workforce for safety rule violations and disciplines employees who bypass machine guards regardless of whether they report injuries.
Employee twists her ankle at work but does not immediately realize that she is injured because her ankle is not painful or swollen, and therefore she does not report the injury to Employer. The next morning, Employee’s ankle is painful and swollen and she realizes it is the kind of injury she is required to report to Employer as soon as practicable. However, Employee does not report the injury after this realization, although she easily could have, and instead reports it several weeks later. Employer disciplines Employee for failing to report her injury as soon as practicable after realizing she has the kind of injury she is required to report.

Incentive Programs

The rule prohibits using incentive programs to penalize workers for reporting work-related injuries or illnesses. If an employee reports an injury or illness, and the employer subsequently denied a benefit as part of an incentive program, this denial may constitute retaliatory action against the employee for exercising his or her right to report an injury or illness.

Illegal Retaliation (according to OSHA):

Employer informs its employees that it will hold a substantial cash prize drawing for each work group at the end of each month in which no employee in the work group sustains a lost-time injury. Employee reports an injury that she sustained while operating a mechanical power press. Employee did not violate any employer safety rules when she sustained her injury. Employee’s injury requires her to miss work for two days. Employer cancels the cash prize drawing for that month for Employee’s work group because of Employee’s lost-time injury.
Employer informs its employees that it will hold a substantial cash prize drawing for each work group at the end of each month in which all members of the work group comply with applicable safety rules, such as wearing required fall protection. Employee sustains a lost-time injury when he falls from a platform while not wearing required fall protection. Employer cancels the cash prize drawing for Employee’s work group that month ostensibly because Employee failed to wear required fall protection. However, Employer’s employees routinely fail to wear required fall protection but the only time Employer cancels the cash prize drawing is when an employee reports an injury.

Non-Retaliation (according to OSHA):

Employer informs its employees that it will hold a substantial cash prize drawing for each work group at the end of each month in which all members of the work group comply with applicable safety rules, such as wearing required fall protection. Employee sustains a lost-time injury when he falls from a platform while not wearing required fall protection, and he reports the injury to Employer. Employer cancels the cash prize drawing for Employee’s work group that month because Employee failed to wear required fall protection. Employer actively monitors its workforce for compliance with applicable work rules and cancels the cash prize drawings when it discovers work rule violations regardless of whether the employee who violated the work rule also reported an injury.
Employer holds a party for all employees who complete a safety training course. Employee failed to attend the training because she was absent from work due to a work-related injury that she reported. Employer excluded Employee from the training-completion party because she did not complete the training. Employer consistently excluded all employees who failed to complete a training course from the training-completion party regardless of why they failed to complete the training, including those who were on vacation or absent because of a non-work-related injury or illness.

Drug Testing

OSHA plainly states that the rule does not prohibit drug testing of employees, including drug testing pursuant to the Department of Transportation rules or any other federal or state law (such as state workers’ compensation law). It only prohibits using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness. Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness. However, if employee drug-use could not have contributed to the injury or illness, post-incident drug testing could constitute prohibited retaliation, as it would discourage injury reporting without contributing to the employer’s understanding of why the injury occurred .

Illegal Retaliation (according to OSHA):

Employer required Employee to take a drug test after Employee reported work-related carpal tunnel syndrome. Employer had no reasonable basis for suspecting that drug use could have contributed to her condition, and it had no other reasonable basis for requiring her to take a drug test. Rather, Employer routinely subjects all employees who report work-related injuries to a drug test regardless of the circumstances surrounding the injury. The state workers’ compensation program applicable to Employer did not address drug testing, and no other state or federal law requires Employer to drug test employees who sustain injuries at work.
Employer requires all employees who report lost-time injuries to take a drug test regardless of whether drug use could have contributed to the injury because the drug testing requirement is included in the collective bargaining agreement at the workplace. Employer drug tests Employee (who is covered by the collective bargaining agreement) when she reports a lost-time injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome. The employer had no reasonable basis for suspecting that drug use could have contributed to her injury and had no other reasonable basis for requiring the test.

Non-Retaliation (according to OSHA):

Employee was injured when he inadvertently drove a forklift into a piece of stationary equipment, and he reported the injury to Employer. Employer required Employee to take a drug test.
Employer drug tests all employees who report work-related injuries to the employer to get a 5% reduction in its workers’ compensation premiums under the state’s voluntary Drug-Free Workplace program. Employer drug tests Employee when she reports a work-related injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome.
Employer requires all employees who report lost-time injuries to take a drug test because the employer’s private insurance carrier provides discounted rates to employers that implement such a drug-testing policy. The relevant rate discount provisions in the private policy are identical to those in the applicable state workers’ compensation law. Employer drug tests Employee when she reports a lost-time injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome.

If OSHA’s new anti-retaliation rules go live, employer will have to study these examples as if they are gospel, as they will help employers navigate the increasingly complex world of OSHA compliance so as to avoid costly and complex retaliation complaints.

Jon Hyman’s post originally appeared on Meyers Roman’s Ohio OSHA Law Blog.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

September 29, 2016June 29, 2023

Will OSHA’s New Whistleblower Rules Invalidate Your Settlement Agreement?

When an employer presents an agreement to an employee ancillary to the separation of that employee’s employment, or settles a claim asserted by an employee, part of the bargain for which the employer is paying is finality. Yet, over the past couple of years, the federal government has made this finality harder and harder to achieve.

Confidentiality, non-disparagement, and other “gag” provisions in employee separation and settlement agreements have been under attack by various federal agencies, including the EEOC and the NLRB. Now, OSHA also has joined the fray.

Last month, OSHA published new guidance, part of its revisions to its Whistleblower Investigations Manual, which seeks to free employees to report safety and other violations to the government.

As part of OSHA’s administration of myriad whistleblower protection statutes, OSHA reviews settlement agreements between complainants and their employers. OSHA only approves such agreements that it deems to be fair, adequate, reasonable, and in the public interest, and if the employee’s consent was knowing and voluntary. If OSHA encounters a provision that prohibits, restricts, or otherwise discourages an employee from participating in protected activity, it will reject the agreement until the employer removed the allegedly offensive provision.

OSHA’s updated guidance clarifies the criteria OSHA will use to evaluate whether an agreement impermissibly restricts or discourages protected activity.

Moving forward, OSHA will not approve any of the following “gag” provisions:

A provision that restricts the employee’s ability to provide information to the government, participate in investigations, file a complaint, or testify in proceedings based on an employer’s past or future conduct. For example, OSHA will not approve a provision that restricts an employee’s right to provide information to the government related to an occupational injury or exposure.

A provision that requires an employee to notify his or her employer before filing a complaint or voluntarily communicating with the government regarding the employer’s past or future conduct.

A provision that requires an employee to affirm that he or she has not previously provided information to the government or engaged in other protected activity, or to disclaim any knowledge that the employer has violated the law.

A provision that requires an employee to waive his or her right to receive a monetary award from a government-administered whistleblower award program for providing information to a government agency, or that requires an employee to remit any portion of such an award to the employer.

So, what is an employer to do? How can an employer secure as much finality as possible while satisfying OSHA’s stance against gag provisions? OSHA suggests prominently inserting the following clause into the agreement:

Nothing in this Agreement is intended to or shall prevent, impede or interfere with complainant’s non-waivable right, without prior notice to Respondent, to provide information to the government, participate in investigations, file a complaint, testify in proceedings regarding Respondent’s past or future conduct, or engage in any future activities protected under the whistleblower statutes administered by OSHA, or to receive and fully retain a monetary award from a government-administered whistleblower award program for providing information directly to a government agency.

Another suggestion? Don’t go this alone. Work with your labor and employment counsel to ensure that your agreements are up to date with the ever changing legal landscape. If you haven’t recently updated your “standard” release, now is a good time to do so. The government is watching.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

August 25, 2016July 24, 2024

New OSHA Whistleblower Manual Creates Huge Burden for Employers

We typically think of OSHA in terms of workplace safety. Safety, however, is only a small part of what OSHA does. In fact, in addition to guarding our nations’ workers from workplace hazards, OSHA also enforces the anti-retaliation provisions of a veritable alphabet soup of federal statutes, such as the Sarbanes-Oxley Act, the Affordable Care Act, and the Clean Air Act, and the Wendell H. Ford Aviation Investment and Reform Act of the 21st Century (really, that’s a thing).

For most of those OSHA-enforced anti-retaliation statutes, OSHA has made employers’ anti-retaliation compliance a whole lot more difficult.

On Jan. 28 of this year, OSHA published a new Whistleblower Investigations Manual [pdf]. It is the guidebook OSHA investigators use to determine whether the agency should pursue or dismiss a retaliation case.

In that manual, OSHA both significantly decreased the showing that a complaining party must show to establish a whistleblower retaliation claim, while, at the same time, significantly increased the burden an employer must meet to demonstrate that it took the challenged adverse action for a legitimate business reason and escape liability.

The new, lower standard in whistleblower retaliation investigations is whether “OSHA has reasonable cause to believe a violation occurred.” Indeed, OSHA need only “find reasonable cause that a complaint has merit” to conclude that the employer violated the statute.

How low is this burden? I’ll let OSHA explain:

Under the reasonable cause standard, OSHA must believe, after evaluating all of the evidence gathered in the investigation from the respondent, the complainant, and other witnesses or sources, that a reasonable judge could rule in favor of the complainant.… Because OSHA makes its reasonable cause determination prior to a hearing, the reasonable cause standard is somewhat lower than the preponderance of the evidence standard that applies following a hearing. Accordingly, OSHA’s investigation must reach an objective conclusion – after consideration of the relevant law and facts – that a reasonable judge could believe a violation occurred. The evidence does not need to establish conclusively that a violation did occur.

In other words, OSHA need not find much in support of a complaint to conclude that it has reasonable cause to believe a violation occurred. It’s about as low of an evidentiary standard as one could have.

Among other statutes, this lower standard of proof applies to The Energy Reorganization Act, the Wendell H. Ford Aviation Investment and Reform Act for the 21st Century, the Surface Transportation Assistance Act, the Sarbanes Oxley Act of 2002, the Pipeline Safety Improvement Act of 2002, the Federal Railroad Safety Act, the National Transit Security System Act, the Consumer Product Safety Improvement Act of 2008, the Affordable Care Act, the Consumer Financial Protection Act of 2010, the Seaman’s Protection Act, the FDA Food Safety Modernization Act, and the Moving Ahead for Progress in the 21st Century Act. Because of the wide range of industries these statutes impact, the odds are pretty good that this change impacts your business.

All is not lost for employers, however, because the manual gives employers an out (albeit a narrow one), even if OSHA finds reasonable cause. Again, I’ll let OSHA explain:

Under these statutes, even if there is reasonable cause to believe that protected activity was a contributing factor to the adverse action, the respondent may escape liability (and OSHA will issue non-merit findings) if there is clear and convincing evidence that the respondent would have taken the same action in the absence of the protected activity.

As low of a standard “reasonable cause” is, that’s how high a standard clear and convincing is. It is the highest civil liability standard there is.

What does all this mean for employers? It means that OSHA is having its retaliation cake and eating it too. For all of these whistleblower statutes, OSHA will find a violation on the most minimal of showings, and yet require employers to jump the highest civil evidentiary hurdle possible to avoid the same.

And you know what? That’s just not fair.

Instead of making it impossible for an employer in all but the clearest of cases to avoid liability, it should strive for a level playing field. Instead, OSHA has tilted the playing field so strongly in a employee’s favor that, if an employee files a whistleblower complaint under one of these “contributing factor” statutes, the employer best be prepared to litigate or pay up, because, in all the but the clearest of cases, OSHA has made it increasingly difficult, if not nearly impossible, for an employer to win.

I understand the importance of protecting whistleblowers and creating an environment in which employees feel comfortable coming forward with complaints, but there has to be a fairer means to accomplish this goal.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

July 28, 2016June 29, 2023

OSHA Says ‘Negative’ to Post-Accident Testing

Buried in OSHA’s impending final rule on electronic reporting of workplace injuries and illnesses is this little nugget. OSHA believes that you violate the law if you require an employee to take a post-accident drug test. Let me repeat. According to OSHA, you violate the law if you automatically drug test any employee after an on-the-job accident.

Allow me to pause while this sinks in.

While this prohibition doesn’t appear in the the actual text of the final rule, it does prominently appear in OSHA’s interpretation of the provision which prohibits employers from retaliating against employees who reporting a work-related injury or illness:

OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.… [T]his final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in 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.… Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.

“What about workers’ compensation laws,” you say? “State law requires post-accident testing. What gives?” OSHA hears your cries, and has an answer for you:

A few commenters also raised the concern that the final rule will conflict with drug testing requirements contained in workers’ compensation laws. This concern is unwarranted. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing. This is doubly true because Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers’ compensation laws.

Make no mistake, this interpretation is huge for employers. As a result of this new reporting standard, employer policies that require post-accident drug testing will face scrutiny by OSHA, and OSHA will cite you for any policy that mandates post-accident testing without consideration of the specific facts and circumstances of the injury. Further, OSHA will deem retaliatory any employer discipline for a failed or refused post-accident test unless the drug use is likely to have contributed to the accident and for which the test can accurately identify pre-accident drug-related impairment. That’s a high bar for employers to clear.

This rule was to take effect on Aug. 10, but OSHA has stated that it is delaying enforcement until Nov. 1. If you have a drug testing policy or otherwise engage post-accident testing in your workplace, now is the time to review your policies and practices with your employment counsel. This issue is very much on OSHA’s radar, which means it must be on your radar also.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.