In 2016, a new rule from OSHA amended federal law to prohibit employers from retaliating against employees for reporting occupational injuries or illnesses. Among other things, it indicated that blanket automatic post-accident drug testing is improper because it can discourage employees from properly reporting injuries.
Practically speaking, however, company drug testing regimens have been untouched. “The Trump administration has largely not enforced the rule,” according to recent client guidance from law firm Fisher Phillips.
But the Obama-era rule is still in effect, and the Biden administration likely will begin enforcing the rule straight away, according to the firm. It suggests employers “may want to carefully reconsider” blanket policies and instead craft policies on a reasonable suspicion-based standard, such as when employee drug use is likely to have contributed to the incident and a drug test can accurately identify impairment.
It’s one of several changes to expect. The employment law firm expects to see an increase in general duty clause citations for COVID-19 violations of CDC guidelines, a temporary COVID-19 standard, a permanent infectious disease standard, and a doubling in the number of OSHA inspectors.
“Workplace safety enforcement will be more aggressive and robust under an OSHA governed by a Biden administration,” said the firm. “Employers should take actions now to ensure that their safety and health programs are compliant with rules that, although not enforced during the Trump presidency, are still in place and govern American workplaces.” Headlines that have largely disappeared could again become common, like those from 2014: “Forever 21 fined $158,000 for Safety Violations at New Jersey Location” and “OSHA Fine Dollar Tree Store $177,800 for Safety Hazards at Massachusetts Store.”
Employees play a critical role in safety enforcement and OSHA scrutiny. For example, a cashier at convenience store in Shawnee, Oklahoma, complained to a supervisor that beverage boxes inside the cooler were stacked too high and creating a safety hazard. When the supervisor failed to correct the hazard, the employee filed a complaint with the local OSHA office and was promptly fired. Naturally, the company ended up paying—including back wages.
Not every employee complaint is legitimate, however. A study several years ago by the General Accounting Office found that companies frequently become targets of OSHA safety inspections because of disgruntled employees and workers who don’t understand safety standards. More than half of the compliance officers the GAO surveyed said they found differences between what complainants alleged and what they found during inspections. In fact, so often claims are inflated or bogus that the GAO had found that OSHA investigations stemming from specific complaints resulted in serious violations no more frequently than general OSHA inspections targeting specific industries.
Strategies to Manage Safety Issues
With safety rules enforcement likely to ramp up, is there anything retailers can do to prevent OSHA from conducting an unwarranted inspection of stores and DCs? Interviews and government studies suggest a few strategies that might help.
1. Give workers an internal forum and the freedom to register health and safety complaints. If employees feel they don’t have an audience to which they can report safety concerns, they may turn to OSHA, suggested the GAO report. Employer safety committees can initially address employee complaints and their efficacy improves if members of the safety committees represent both employees and management. Employees are also more likely to turn to your company’s safety committee—rather than OSHA—if your company:
- Has a system for anonymously reporting safety concerns to the safety committee,
- Frequently reminds employees that the safety committee wants to hear about safety areas that need addressing, and
- Reports back to employees on the actions the company takes or plans to take in response to every safety complaint (even if it is an explanation as to why it does not plan to act).
2. Develop a system to handle all employee safety complaints. Regardless of whether an employee goes to a supervisor or a safety committee representative to report a problem, any report of safety concerns or complaint needs to find its way into a formal investigation process. Ask: What happens to a complaint after an employee makes it? Is it the same regardless of who they report it to? Is it the same regardless of who makes it? Is the complaint assigned a tracking number? Who is responsible for ensuring that an appropriate internal investigation is conducted? Do store managers and supervisors receive instruction on what exactly to do when someone voices a safety concern?
3. Notify new employees during safety orientation about your company’s process for handling safety complaints. Also, stress your company’s desire for employees to immediately report all safety concerns. Setting the tone for new employees will go a long way towards preventing an anonymous call to OSHA later.
4. Include relevant information about OSHA standards during employee safety training. Most OSHA inspections that turn out to be unnecessary are because employee complainants didn’t understand what constitutes an OSHA violation or had limited knowledge of OSHA standards, according to the GAO report. By emphasizing how your company’s safety procedures meet applicable OSHA standards, companies can prevent employees from lodging complaints with OSHA out of ignorance.
5. Ask executive leadership to occasionally speak about the importance of safety as a company value. You have, undoubtedly, already tried this strategy, but have you suggested to senior management that just a few words about safety may prevent an OSHA compliance officer from knocking on your store’s door? Employees who think management cares about safety and wants to confront problems will likely go to a supervisor or the safety committee first. An employee who thinks management only cares about sales and the bottom line is apt to straight to OSHA.
6. Consider collecting data on how employees feel and what they know about your organization’s handling of safety complaints. Do they know to whom they should report problems? Do they say would feel comfortable making a safety complaint? Focus groups or anonymous employee surveys can arm you with information regarding worker trust levels and indicate if you may need increase communication with employees to prevent them from turning to OSHA when problems arise.
The trust-building steps above will reduce the risk of employees making complaints to OSHA, and they can also prevent critical safety events. When employees feel they can’t speak up on safety issue some turn to OSHA, but many more say nothing. This allows safety problems to persist and can lead to a critical safety event.