Tit for Tat: OSHA Issues New Guidance on Its Anti-Retaliation Regulations
By Tami Hannon
It may surprise you to know that until recently, no rule required an employer to have a procedure in place for an employee to report a workplace illness or injury. No rule expressly protected employees who reported workplace illnesses or injuries from retaliation. The Occupational Health and Safety Administration remedied this issue with its recent regulations which went into effect on December 1, 2016. These regulations expressly require an employer to establish a process for reporting a workplace illness or injury and expressly protect workers for making such a report. In response to concerns that employers were using “safety incentive” programs to effectively discourage the reporting of workplace accidents or illnesses, OSHA also regulated those programs.
On January 13, 2017, OSHA issued guidance to assist businesses in crafting their anti-retaliation policies. The Guidance looks at “recommended” anti-retaliation programs as containing five elements: (1) management commitment, (2) a compliance concern response system, (3) an anti-retaliation response system, (4) anti-retaliation training and (5) program oversight. The complete “Recommended Practices for Anti-Retaliation Programs” can be found here.
Element 1 – Management Commitment
In Element 1, OSHA stresses the importance of having upper management involved in creating, assessing, and monitoring the employer’s anti-retaliation program. OSHA recommends that upper management ensure that a system is created, implemented, and followed for employees to report hazards, compliance concerns, or retaliation. Upper management is also to ensure that the identity of reporting workers remains confidential. One manager should be designated and be accountable for the reporting program’s administration and enforcement.
OSHA also recommends that upper management speak with workers or worker representatives about creating and improving management awareness as well as implementing the chosen system. Management should create a system to assess and evaluate employees’ willingness to report compliance concerns and the success of the anti-retaliation program.
Element 2 – Compliance Concern Response System
This element offers guidance on creating the reporting program. OSHA recommends having multiple reporting avenues, such as helplines, email, or in person to a designated individual. You should also create a process for informal reporting to allow for potential issues to be resolved before they become problems. Any avenues put into place should protect the confidentiality or anonymity of the individual making the report or complaint.
Employees should be informed of how to make a report under your policy, as well as externally to OSHA. OSHA also recommends advising employees of their right to choose whether to file an internal report or to report directly to OSHA. These instructions should be clear and readily available to the employees. Complaints or reports received under your policy should be investigated by an independent investigator, who can be either an employee who is not directly involved in the situation or an outside third-party investigator.
Any safety incentive programs you offer must be structured so that they do not discourage employees from reporting injuries, illnesses, or compliance issues. For example, a program that rewards employees for being accident free during a set period would likely be invalid, as would compensation structures that reward lower injury rates. However, positive reinforcement that rewards an employee for following set safety requirements would be permissible.
Element 3 – System for Receiving and Responding to Reports of Retaliation (“Anti-Retaliation Response System”)
This element focuses on how you respond to a report or complaint of retaliation. All complaints should be investigated, and employee confidentiality maintained as much as possible. Protections should be in place to guard against potential conflicts of interest between an investigator and the employee or supervisor. When possible, OSHA recommends using an independent, third-party investigator. If your legal counsel is used to investigate, counsel should inform the employee that counsel represents your interests and any attorney-client privilege is limited to you.
During the investigation, the employee should be advised of the right to file a complaint with OSHA regardless of the internal investigation. The employee should also be advised that the deadline to file with OSHA is not delayed due to the internal investigation. Both the employee and a management representative should be kept informed of progress during the course of the investigation.
Element 4 – Anti-Retaliation Training
OSHA recommends that front-line supervisors and lower-level management receive anti-retaliation training. That training should review the relevant laws and regulations, your commitment to addressing these concerns, the employees’ rights and obligations to report potential hazards and violations, the employees’ statutory right to be protected from retaliation for making a report, the procedures you put into place to address retaliation concerns, and what activities may violate that policy or constitute retaliation. The training should provide supervisors and managers with skills to resolve workplace conflict and retaliation, information on how to respond to a retaliation complaint, and how to recognize when an employee is making a complaint of retaliation. They should also be aware of the consequences to them if they fail to follow the employer’s policies and practices for anti-retaliation.
Element 5 – Program Oversight
Element 5 is the “reflection and review” element. This element involves ongoing monitoring of the program and analysis to ensure the program is functioning as intended. OSHA recommends conducting an independent, formal audit to evaluate the anti-retaliation program.
It is unclear whether, or in what form, OSHA’s new anti-retaliation regulations will survive. A lawsuit is currently pending in a federal court in Oklahoma challenging the regulations as being beyond OSHA’s rule-making power. A similar lawsuit previously filed in Texas was unsuccessful. It is anticipated that the new administration will focus on reducing regulations and may seek to repeal the anti-retaliation regulations. For the time being, employers should be familiar with and prepared to respond to these new requirements.