OSHA Guidance on Incentive, Disciplinary and Drug Testing Programs
Recently, the Occupational Safety and Health Administration issued the final rule Improve Tracking of Workplace of Injuries and Illnesses. This rule is designed to promote an environment where employees are encouraged to report workplace injuries and ensure that employers are held accountable reporting these injuries.
The rule addresses an important issue in the process of tracking workplace injuries and illnesses, the concept of employer retaliation. OSHA recently provided guidance on areas where retaliation may occur and what would be considered grounds for a citation. The three areas OSHA focused on were disciplinary actions, drug testing, and incentive programs. If you ever have questions about your procedures in any of those areas, contact the OSHA attorneys at Trent Cotney P.A.
The new rule prohibits disciplining an employee for reporting a workplace injury or illness. OSHA will look at cases in which disciplinary actions were taken against employees who violated safety rules but did not report a workplace injury. If there aren’t any and it appears that an employee was simply disciplined for reporting and injury, the employer will be found in violation. Employers may also be cited for “rigid” prompt reporting requirements. For example, if an employee is not given a reasonable time to determine if they are injured from incident taking place at a worksite.
According to the final rule, employers must have a plausible reason for believing that drug use was a factor in a reported injury. For example, it’s justifiable to request a drug test be done by employee who files an injury report after driving a crane into another vehicle. It’s plausible that drugs may have been involved in this accident. It’s not justifiable to request a drug test from someone who was injured as a bystander.
However, there are exceptions to this rule. OSHA uses the example of someone who violates a safety requirement, like bypassing a machine guard and is injured. The employee will likely report an injury, but they can be disciplined as well.
OSHA encourages incentive programs be put in place to promote proper following of safety procedures as opposed to rewarding a lack of injury reporting. If an employer rewards employees for a month in which no injuries were reported and then doesn’t reward them in a month where an injury was reported, they can be found in violation.
Disclaimer: The information contained in this article is for general educational information only. This information does not constitute legal advice, is not intended to constitute legal advice, nor should it be relied upon as legal advice for your specific factual pattern or situation.