We revised our fitness for duty policy when the new OSHA anti-retaliation provision took effect in December 2016. Now, we look at whether the employee was at fault or whether he/she received a citation for the accident to determine if a fitness for duty evaluation should be performed.
Why does OSHA address retaliation in this rule? Isn't it already against the law to retaliate against an employee for reporting a workplace injury or illness?
Significant concerns were raised during the comment period that the new electronic reporting requirements in the final rule could lead to increased incentives to take retaliatory action that would discourage workers from reporting their work-related injuries or illnesses. OSHA acknowledges these concerns. Although section 11(c) of the OSH Act already prohibits any person from discharging or otherwise discriminating against an employee who reports a fatality, injury, or illness, OSHA may not act under section 11(c) unless an employee files a complaint with OSHA within 30 days of the retaliation. In contrast, under the final rule, if OSHA finds evidence that an employee has been retaliated against for reporting an injury or illness, OSHA will be able to cite an employer for retaliation even if the employee did not file a timely 11(c) complaint. Often the point of retaliating against an employee who reports an injury or illness is to intimidate both the employee and other workers from reporting. This new rule gives OSHA an important new tool to ensure that employers maintain accurate injury and illness records because it gives OSHA the ability to protect workers who have been subject to retaliation for reporting work-related injuries or illnesses, even when they cannot or will not speak up for themselves by filing an 11(c) complaint.
What forms of "retaliation" does this rule prohibit?
The rule prohibits employers from taking adverse action against employees for reporting work-related injuries or illnesses. Adverse action is action taken by the employer that would discourage a reasonable employee from reporting a work-related illness or injury accurately. Examples of adverse action include:
§ Discharge, demotion, or denying a substantial bonus or other significant benefit
§ Assigning the employee "points" that could lead to future consequences
§ Demeaning or embarrassing the employee (for example, requiring an employee who reports an illness or injury to wear a fluorescent orange vest for a week)
§ Threatening to penalize or otherwise discipline an employee for reporting
§ Requiring employees to take a drug test for reporting without a legitimate business reason for doing so
§ See Chapter 3 of the Whistleblower Investigations Manual, CPL 02-03-007 (01/28/2016), for additional examples of adverse action
Meredith R. Weaver, SPHR, SHRM-CP
Manager, Employee Health
Direct: 304-598-6654 or 7-6654
Amy Olson, BSN, MS, COHN-S
Director, Employee Health and Wellness
Johns Hopkins All Children's Hospital
500 Seventh Avenue South, Suite 103
St. Petersburg, FL 33701
P 727-767-8211 | F 727-767-8399
1. Curious as to what type of drug testing others perform on employees?
2. Observed vs Nonobserved? NON
3. Do you use different processes depending on reason for drug test? No. Even though we are non-DOT in terms of our testing we follow DOT collection procedures.
Random, Pre-Employment, Reasoable Suspicion, For Cause-narcotic discrepancy
We perform Post offer, RS, and Post-Incident (any moving vehicle incident)
Darlene (Sprinkle) Sims, MSN,FNP-C
Director of Infirmary Employee Health
(251)435-5957 fax (251)435-3067
# 185 Mobile Infirmary Blvd
Mobile, Al 36607
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