OSHA Safety Retaliation – What Is It?

Virtually every employee protection law, federal or state, has some sort of anti-retaliation provision. The federal Occupational Safety and Health Act is no exception. The Occupational Safety and Health Administration (OSHA) enforces the anti-retaliation provision in this federal law and also the anti-retaliation provisions contained in many other “whistleblower-type” federal laws. This post touches on the anti-retaliation cause of action in the Occupational Safety and Health Act, called a Section 11(c) claim, named after the section of the 1970 act in which it is found.

What’s Covered

My Safety Complaint Was Unsafe for My Continued EmploymentSection 11(c) applies to many forms of employee “protected activity.” Protected activity includes filing a complaint with OSHA, raising a safety complaint with the company, reporting a workers’ compensation injury, or participating in any way in an OSHA safety inspection. Notably, protected activity also includes refusing to follow a work order if an employee believes in good faith that following the order could cause death or serious injury. This type of refusal sometimes is referred to as “invoking safety rights” under the act.

What You Can’t Do

What constitutes retaliation according to OSHA? It is very broad. Any sort of negative employment decision close in time to employee-protected activity can be the basis for a Section 11(c) claim. Discipline and discharge are obvious examples. Prohibited employer conduct under 11(c) is much broader though. Any employer conduct that discourages safety or accident (or “near miss”) reporting is prohibited by 11(c). Thus, for example, OSHA has taken the position that employer safety programs that discourage the reporting of accidents or injuries can violate Section 11(c). An example would be a bonus policy that effectively rewards employees for not reporting workplace accidents without any sort of clear statement in the policy (or through training) that retaliation will not occur for accidents that are reported.

What Employees Can Get

Employers need to take potential Section 11(c) claims seriously. We have been seeing more and more of these claims recently, which is consistent with the trend of more retaliation claims generally. An employee must make a Section 11(c) claim very quickly, within 30 days of an alleged retaliatory act, and, once the claim is made, OSHA investigators should act very quickly, usually in just a matter of days. After OSHA completes its investigation, DOL lawyers will decide whether to bring a lawsuit against the company. These lawsuits are filed in federal court and proceed like many other federal discrimination lawsuits. While an individual employee cannot file the lawsuit by him or herself, these cases otherwise are similar to other discrimination cases. The complainant will have to show protected activity, an adverse action, and a causal connection between the two. If DOL is successful, remedies include back pay and back benefits, compensatory and punitive damages, reinstatement (or other remedial employment actions), notice posting and training, and an award of fees and costs. Settlement and mediation options exist as in other employment cases.

What’s Been Going on Recently

During the latter part of President Obama’s administration, OSHA issued administrative guidance related to Section 11(c). Specifically, OSHA took the position in 2016 that mandatory post-accident drug testing violated Section 11(c) unless an employer could show that drug use likely contributed to a specific accident. OSHA also attacked employer safety incentive programs that discouraged accident reporting, especially if some sort of employee benefit was withheld if accidents in fact were reported. Another aspect of the 2016 revision included a procedure by which an OSHA inspector could issue a retaliation citation even if an employee had never made a retaliation complaint to OSHA.

In the last few months under President Trump’s administration, OSHA has back tracked on some of the restrictions added by the last administration:

  • Post-incident drug testing is allowed if it is done consistently and if all persons who could have contributed to the incident are tested. In other words, testing is okay if it is not just limited to the employee who reported an injury.
  • Safety programs are allowed in many forms, including those that provide “accident-free” bonuses. Such programs should include policy statements, training, and related precautions that make clear that accidents and injuries still should be reported and that employees will not be retaliated against for doing so.

In conclusion, keep safety activities in mind when disciplining employees or implementing safety-related rules and policies. Employer intent matters. If an employment decision follows closely on the heels of protected activity or cannot be justified by legitimate non-retaliatory motivation of the decision maker, a Section 11(c) claim could be very unsafe for the company.

Don’t Report Yet! OSHA Holds Off on Electronic Posting RequirementsLast July, we wrote about the Occupational Safety and Health Administration’s new electronic reporting requirements, which will require certain employers (those with 250 or more employees, or those with 20-249 employees in specific industries) to electronically submit injury and illness data. When OSHA announced the new reporting requirements, it gave a deadline of July 1, 2017, for employers to electronically submit their information in a Form 300A. Last week, OSHA announced that it has indefinitely postponed that deadline and conveyed that it is not accepting electronic submissions at this time.

At this point, OSHA and the new presidential administration have not hinted that they plan to make any substantive changes to employer obligations to complete and retain injury and illness records. We have seen, however, a significant change in the course of employer regulations across the board since the Trump Administration took office, so the delay in the implementation of the electronic reporting requirements could suggest that substantive changes are in the works.

As we discussed in a March blog post, President Trump has already repealed the Fair Play and Safe Workplaces regulations finalized last August, which required reporting of a host of violations under labor laws including OSHA. Additionally, OSHA has not published any information about enforcement fines issued since Inauguration Day, whereas under the Obama administration, OSHA issued more than 400 news releases annually about fines and other enforcement actions. This change marks a dramatic shift from the prior administration’s attitude that employers should be admonished to clean up any issues lest they face a hefty fine or other penalty. The postponement of the electronic reporting requirement appears to be yet another development in that shift.

Stay tuned for further developments.

workplace hazardWhen does an incidence of workplace violence rise to the level of a federal case? The Occupational Safety and Health Administration (OSHA) has updated its guidance on just that issue. The OSH Act’s General Duty Clause requires employers to provide a workplace free from recognized hazards likely to cause death or serious physical harm to employees. The succinctly titled Directive Number CPL 02-01-058, “Enforcement Procedures and Scheduling for Occupational Exposure to Workplace Violence” —which became effective on January 10, 2017 — addresses when hazards created by people (i.e., violent coworker, customer, etc.) violate the General Duty Clause.

The Directive provides general enforcement guidance as to when OSHA officials should make a response to, and/or cite an employer for, a complaint or fatality arising out of an incident of workplace violence. It defines “workplace violence” broadly as “violent acts (including physical assaults and threats of assaults) directed towards persons at work or on duty.” The stated purpose of the new Directive is to (1) clarify the different healthcare settings in which workplace violence incidents are reasonably foreseeable; (2) recognize corrections and taxi driving as high-risk industries; (3) identify more resources for inspectors; (4) explain the review process for settlement agreements; and (5) update guidance on hazard alert letters.

Why the Update?

The updated Directive appears to be based, in part, on data from the Bureau of Labor Statistics (BLS) about the 15,000 to 25,000 incidents of workplace violence reported each year. First, BLS says that two- thirds of the reported incidents resulting in missed work occurred in healthcare settings.  Also, BLS reported that late-night retail workers, taxi drivers, and correctional officers have reported high numbers of incidents of workplace violence.

What Does the Directive Say?

The Directive generally sets forth the steps OSHA is to follow to determine whether to initiate an inspection of a complaint or incident related to workplace violence. It also provides the basis for a citation under the General Duty Clause, the resources available to OSHA in conducting inspections and developing citations, and how Area Offices may assist employers in addressing workplace violence.

In determining whether to initiate an inspection, the Directive sets forth a list of known risk factors, none of which would individually trigger an inspection. OSHA is to consider whether the employer’s work entails:

  • contact with the public;
  • the exchange of money;
  • the delivery of passengers, goods, or services;
  • a mobile workplace, such as a taxicab;
  • employment in healthcare, social service, or criminal justice;
  • working alone or in small numbers;
  • working late at night or during early morning hours;
  • working in high-crime areas;
  • guarding valuable property or possessions; or
  • working in community-based settings, such as drug rehabilitation centers and group homes.

Assuming your workplace involves some of those factors, when does a workplace violence incident constitute a violation of the General Duty Clause?  The Directive provides the following elements of a violation: (1) the employer’s failure to keep its workplace free of a foreseeable workplace violence hazard; (2) the hazard was recognized explicitly or because it occurred in a recognized high-risk industry; (3) the hazard was causing or likely to cause death or serious physical harm; and (4) there was a feasible, useful means of correcting the hazard.

Guidance on Assessing Your Risk

The updated Directive advises employers to assess their worksites to identify methods for reducing incidences of workplace violence, and counsels employers to develop and implement a well-written workplace violence prevention program. It goes on to suggest that employers implement engineering and administrative controls, and train employees regarding reducing incidences of workplace violence.

Appendix A to the Directive provides a list of potential methods for reducing workplace violence that employers should consider. Among other methods, the appendix suggests provisions that a comprehensive workplace violence prevention program should include, like a policy statement, a hazard assessment and a security analysis. The appendix also provides examples of engineering controls, including assessing plans for new construction to eliminate or reduce security risks; installing and maintaining alarm systems and other security devices, including metal detectors and 24-hour close-circuit recording equipment; limiting access to the worksite; and installing bright, effective lighting. Examples of administrative controls include conducting a workplace hazard analysis; training employees as to workplace violence; establishing liaisons with local police and state prosecutors; and requiring employees to report all assaults or threats to a supervisor or manager.

You should consider OSHA’s guidance in developing and implementing a workplace violence prevention program. Make sure your employees know that they do not have to tolerate potentially violent behavior, and they need to report any such behavior. However, when you get to the suggested engineering and administrative controls, be sure to balance them against other laws governing your workplace, including state, local, and federal privacy laws and safety and building codes and standards.