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New Employee Anti-Retaliation Guidance: Pizza Parties Are Back

Under new employee anti-retaliation guidelines, OSHA has rolled back its enforcement of provisions concerning safety incentive programs and drug testing. OSHA continues to encourage workers to report industrial injuries without fearing retaliation from employers who may take negative actions.

Promoting Workplace Safety for Employees

After much confusion about previous employee anti-retaliation policies, OSHA issued a standard interpretation to clarify its position on anti-retaliation provisions published in 2016. The new guidance rolls back enforcement of anti-retaliation provisions concerning safety incentive programs and post-accident drug testing.

OSHA’s new employee anti-retaliation policies clarify acceptance of workplace safety incentive programs and post-accident drug testing. They state that incentive programs play an important role in promoting workplace safety and health for employees. Such programs reward employees for reporting workplace hazards and near-miss accidents that may cause serious injuries and fatalities.

OSHA permits rate-based incentive programs and workplace drug testing as long as they do not discourage reporting or take negative actions against an employee. Employers who penalize reporting actions by withholding prizes, bonuses, or incentives may receive violations. Workplace drug testing is permitted under certain circumstances:

  • Drug testing is random
  • Drug testing is not related to a work-related injury or illness report
  • Drug testing performed under a workers’ compensation state law
  • Drug testing performed under federal law (U.S. Department of Transportation rule)
  • Drug testing performed to evaluate the cause of a workplace accident or injury

When drugs are suspected as the cause of a workplace accident and/or injuries, all employees whose conduct is in question must be tested, not just employees who reported injuries.

Employer Compliance

Under OSHA’s amended employee-retaliation guidelines, employers are not likely to be cited or penalized unless there is strong evidence that retaliation against an employee took place. However, employers are expected to comply with the conditions of incentive-based programs and workplace drug testing. Employers must not discourage reporting of workplace accidents and injuries or retaliate against workers who report them.

To comply with OSHA rules, employers are urged to treat all employees the same when dealing with reports of job-related accidents. Incentive programs and drug testing must not be used as retaliation against any employee who reports a workplace incident. Post-incident drug testing should be limited to situations where employee drug use likely contributed to a work-related accident and testing can accurately identify drug impairment.

Federal laws protect employees from workplace retaliation which includes any negative actions, including disciplinary measures, job reassignment or demotion, salary reduction, and job termination.

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