OSHA’s New Interpretation of its Anti-Retaliation Provisions

Nov 9, 2016

A memorandum from OSHA clarifies the difference between “rewards” and “retaliation.”

OSHA is integrally involved in the regulation of efforts by employers to protect themselves and their employees from drug- and alcohol-related accidents.

An article by Tressi L. Cordano in OSHA Law Blog explains the anti-retaliation provisions in “Section 1904.35 of the new final rule- ‘Improve Tracking of Workplace Injuries and Illnesses’” issued on Oct. 19, 2016.

The memorandum attached to these rules explains what “incentive programs, disciplinary programs and post-accident drug testing” constitute acceptable behavior by employers and what actions are retaliatory and therefore unacceptable.

OSHA has been criticized over the years for drafting regulations that are difficult for employers to understand. This memorandum is a welcome and much-needed departure from OSHA’s past directives. The distinctions between acceptable and unacceptable actions are reasonable and easy to understand. OSHA provides real-life examples of the types of activities that fit within each category.

Ms. Cordano’s article summarizes these rules.

Disciplinary programs that penalize employees for not reporting accidents in a timely manner are allowed. Disciplining employees for reporting work-related accidents is not allowed.

“OSHA recommends incentive programs that reward…employee participation in safety programs…” Employers cannot offer their employees incentives for not reporting accidents.

Drug tests required by state worker’s compensation laws and “’other state or federal laws’” are now permitted.

Only drug tests that demonstrate “impairment at the time of injury” are allowed. The author notes that the only test that currently does this is the alcohol test.

It’s important for contractors to understand the requirements outlined in OSHA’s new rule. Ms. Cordano’s article is an informative starting point.



OSHA Quietly Issues Guidance on Incentive Programs, Disciplinary Programs and Drug-Testing Programs, Tressi L. Cordano, OSHA Law Blog, Oct. 24, 2016.