The federal Occupational Safety and Health Administration (“OSHA”) recently released guidelines for employer anti-retaliation programs. In a January 2017 report, OSHA outlined “five key elements” to an effective anti-retaliation program. Retaliation is taking adverse action against an employee for engaging in a protected activity. Protected activities may occur when an employee reports a workplace injury, raises a concern about a potentially hazardous workplace condition or activity, or reports or refuses to perform an activity the employee believes to be unlawful. The guidelines are intended to advise employers on how they can implement anti-retaliation programs to help workers feel more comfortable with reporting potential safety violations within the workplace.
You can access OSHA’s Anti-Retaliation Guidelines here: https://www.osha.gov/Publications/OSHA3905.pdf.
OSHA’s “five key elements” include:
- Management leadership, commitment, and accountability
Management should demonstrate leadership and commitment to furthering the values of preventing retaliation. This can be accomplished by ensuring that the anti-retaliation program maintains the confidentiality of the reporting employees, conferring with employees about improving the anti-retaliation program, requiring training for managers, and/or establishing an accurate evaluation technique to explore whether employees are willing to report concerns about the workplace.
Management should be held accountable. Employers should incorporate anti-retaliation measures (e.g., promptly addressing employee concerns, attending training, and championing anti-retaliation initiatives) in management performance standards and reviews. In addition, employers should emphasize codes of conduct and ethics programs that apply appropriate consequences to managers who retaliate or who violate the confidentiality of an employee who made a report.
- System for listening to, and resolving, employees’ safety and compliance concerns
Employers should foster an organizational culture that values raising concerns about workplace conditions. To do this, employers should establish procedures that enable employees to report concerns, provide for fair and transparent evaluation of concerns raised, offer timely responses, and ensure a fair and effective resolution of concerns.
- System for receiving and responding to reports of retaliation
Employers should establish channels for employees to report potential acts of retaliation. These procedures should be known and accessible to all employees. In addition, the program should clearly define roles and responsibilities for managers who are involved in responding to reports of retaliation.
Reports of retaliation should be promptly and thoroughly investigated. Every investigation should be taken seriously, follow established procedures, and managers should aim to be transparent with the employee regarding the process.
- Anti-retaliation training for employees and managers
Effective training is key to an anti-retaliation program. Anti-retaliation training for employees should include information about relevant laws and regulations (employee rights and obligations to report potential hazards and violations of law, statutory rights to be protected from retaliation for reporting potential violations, what constitutes retaliation, etc.) and an explanation of the employer’s anti-retaliation program (how to report concerns, options for anonymous reporting, how to elevate a concern when a supervisor or other person does not respond, etc.). Anti-retaliation training for management should include conflict management and problem solving skills, how to respond to a report of workplace concern, and consequences for managers who fail to follow the anti-retaliation policy.
- Program oversight
Oversight is critical to ensure that the anti-retaliation program is working as intended. Employers should monitor whether the program is achieving its goals. For example, employers should examine whether mangers are following the program, explore the trends in reporting and resolution, and assess whether employees are unafraid of retaliation when coming forward with concerns through the use of anonymous surveys.
The results of oversight activities should be reported and shared with all levels of management. Top-level management should also aim to periodically discuss the program with employees to receive additional feedback.
Tips for Employers:
- A program that rewards employees when no workplace injuries or hazards are reported discourages reporting by employees and should be avoided. An example is when an employer offers money incentives when employees meet a zero-reporting goal. These programs might be created with no ill-intention at mind, but may incentivize non-reporting. There are better ways to encourage safe work practices. OSHA recommends smarter incentives, such as providing t-shirts to workers who serve on safety committees, offering modest rewards for suggesting ways to strengthen safety and health, or throwing a party at the successful completion of company-wide safety and health training.
- Many employers require drug testing following workplace accidents. OSHA does not prohibit post-accident drug testing outright, but requires employers to have an objectively reasonable basis for such testing. OSHA recommends, “[d]rug testing policies should limit post-incident drug testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” Further, only those employees whose drug use is likely to have contributed to the incident should be tested. A blanket rule to test all employees involved in any accident should be avoided.
SHLC Attorney Brett Sutton presented Drug Testing Issues and Recent Trends to the Central California Builders Exchange on March 1, 2017. This presentation included discussion of the OSHA guidelines and California rules for employee drug testing. For a free copy of the presentation, please email your request to firstname.lastname@example.org.