With 2016 being similar to being on a rollercoaster, employers have likely had enough of the moving targets of implementation dates for several employment-related measures (we are most definitely looking at you FLSA and OSHA).
After several delays, OSHA’s first phase of the new regulations – the anti-retaliation provisions – went into effect on December 1st. These anti-retaliation provisions have been the center of criticism by employers, mainly due to the changes that employers will have to make with regard to drug-testing policies. How can you be sure that you are complying with OSHA’s anti-retaliation provisions? Below are the basics on what you need to know:
Review your drug-testing policies
While the anti-retaliation provisions do not prohibit employers from testing employees for drugs, a blanket, post-incident drug-testing policy will no longer pass muster with OSHA. A “blanket, post-incident drug-testing policy,” is a policy that mandate a drug test following every workplace injury. OSHA’s concern is that these policies will discourage employees from reporting workplace injuries. If your drug-testing policy looks like a blanket drug-testing policy as described above, consider revising the policy to tie drug-testing to incidents where it appears an employee caused or contributed to the accident. For example, drug-testing would be appropriate where an employee drove a forklift into a structure. Contrast that scenario with drug-testing an employee after a bee sting or after an injury caused by a defective machine part, which would not be appropriate situations to mandate a drug test.
Review your injury reporting and disciplinary policies
Of course, discrimination and retaliation against an employee who reports an injury has long been prohibited by OSHA. However, it is now OSHA’s stance that any employer policy that limits employees from reporting injuries in any way may be considered retaliatory. For example, disciplining an employee for failing to timely report a work-related injury may be retaliatory and discourage employees from reporting injuries. An employer should try to eliminate as many barriers to reporting work-related injuries as possible so that employees are not discouraged from reporting.
Review your safety incentive programs
As with drug-testing, OSHA is not intending on placing a prohibition on employers’ use of safety incentive programs. Right now, you might award a pizza party to the shift or team with the least amount of workplace injuries at the end of the year. Perhaps you reward the manager of a particular team that remains injury-free. Employers should take care to ensure that their safety incentive programs do not deter employees from reporting an injury. For example, programs that reward employees who correctly follow safety rules, identify and/or remedy hazards, or participate on safety committees will have the effect of encouraging safety in the workplace, without putting pressure on employees to refrain from reporting an injury because they want a particular reward.
Once you review your policies, you may find that they are already compliant with the anti-retaliation provisions. However, it is not always clear whether your policies comply. After the fits and starts employers have been put through by employment law regulations this year, you certainly deserve peace of mind. Your employment law team at Lynn Jackson is here to answer your questions and help your business be its best. Let us worry about your compliance with employment laws and regulations so you can focus on your goals.
Contact Kassie via email or call the Rapid City office at 605.342.2592.