New OSHA reporting rules target retaliatory actions

The Occupational Safety and Health Administration has implemented a new rule that could affect workers in South Carolina and across the country. The rule protects workers from facing retaliation for reporting injuries at work, and it also makes drug-testing after a work accident a retaliatory action under some circumstances.

The retaliation provision of the new reporting rule went into effect in December 2016. Under the rule, mandatory drug testing after a work accident could be a violation of the anti-retaliation provision unless an employer has a reasonable suspicion that an employee may have been using drugs that may have contributed to the accident. Post-accident drug testing is also allowed if it is required by state or federal law.

Another part of the rule involves incentives or disincentives employers give their employees for safety. Such incentives may include rewards for the workers going a certain number of days without an accident. Due to concerns that this type of program could discourage employees from reporting accidents, the new rules state that incentives programs should instead offer rewards for making efforts to improve workplace safety, such as participating in safety training or reporting unsafe work conditions.

Employers must also inform employees of their right to report without being subject to retaliation. This can be accomplished by posting OSHA’s ‘It’s the Law” poster at the workplace.

Workplace injuries are usually covered by workers’ compensation. OSHA’s new rule on drug testing after a work accident could protect employees; however, evidence that an injured employee was in any way responsible for their work accident does not matter when it comes to workers’ compensation. Unlike a personal injury lawsuit, a workers’ compensation claim does not require proving that another party was responsible for the accident. Even if the worker is clearly at fault, he or she could still qualify for workers’ compensation benefits.