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.

DOH! Nuclear Safety Regs Trump ADA Accommodation Request (Thankfully)In a battle between a mentally ill employee seeking accommodation for his job at a nuclear plant and federal nuclear safety codes—-which wins out? The Third Circuit Court of Appeals ended up going with safety codes.

Looking Out for an Erratic Employee

Mr. Daryle McNelis was an armed security guard at Pennsylvania Power and Light’s (PPL) nuclear power plant in Susquehanna. As a nuclear power plant operator, PPL was required by the Nuclear Regulatory Commission (NRC) to have a “fitness for duty” program to show that no employees were mentally or physically impaired in any way that would affect their ability to safely and competently perform their duties. In addition, the NRC required PPL to monitor employees who had access to sensitive areas of the plant to make sure that those employees did not constitute an “unreasonable risk to public health and safety or the common defense and security.” This required employees in those positions to undergo a psychological assessment and be under a “behavioral observation program” to identify aberrant behavior. If an employee’s trustworthiness or reliability was determined to be questionable, the NRC required that PPL terminate the employee’s access.

McNelis had unrestricted access and was responsible for protecting vital areas from radiological sabotage, so he was subject to monitoring. He also was armed. In 2012, McNelis started exhibiting bizarre paranoid behavior (he thought his children’s toys were plotting against him) and was abusing alcohol and “bath salts” (a synthetic recreational drug). A coworker reported this behavior to a supervisor. McNelis was examined by a psychologist who performed fitness-for-duty examinations at nuclear facilities nationwide. The psychologist determined that McNelis was considered not fit for duty. Based on that report, PPL revoked McNelis’s access authorization and terminated his employment. McNelis filed an ADA claim alleging that the psychologist wrongfully diagnosed him and that he could have performed the essential functions of his job, with or without an accommodation. The lower court granted summary judgment in favor of the power company.

Safety First

On appeal, the Third Circuit stated that McNelis could not prove that he was fit for duty under the NRC’s regulations and therefore his claim failed. The court cited numerous opinions holding that nuclear power plant employees who lost security clearance or were deemed not fit for duty are not qualified employees under the ADA. By setting such a standard, the NRC made the legally defined qualification an essential function of certain jobs at nuclear power plants. The court went on to analogize the situation to federal DOT regulations for driving a commercial motor vehicle. If an employee could not pass the DOT medical certification, they were not considered qualified under the ADA. Employers covered by the DOT regulations, such as the power plant being covered by the NRC regs, were not insisting on a job qualification of their own devising, but instead were complying with a regulation that had the force of law.

McNelis attempted to argue that the lower court’s holding diminished ADA protections for workers in sensitive positions of the nuclear industry. The Third Circuit stated that due to the potential danger to the public, it was perfectly rational for the NRC to explicitly require nuclear power plants to screen for traits and behaviors that in other contexts might violate the ADA. The Third Circuit upheld the dismissal of McNelis’s claim.

What Did We Learn?

At first glance, this opinion may only seem to apply to high-public-risk employers such as nuclear plants. However, the Third Circuit pointed to a great deal of case law showing that many other occupations are affected by federal safety regulations—-most commonly, DOT regulations. Employers that are explicitly required to have their employees meet federal safety and medical standards should be aware that those can be considered essential functions of that job. This decision also illustrates that safety, and how an ADA accommodation may affect that safety, is always a consideration during the accommodation interactive process.

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.