Employers Should Revisit Anti-Retaliation Policies as OSHA Increases Focus on Retaliation

In announcing its National Emphasis Program (NEP) to prevent workers from contracting COVID-19 in the workplace, the Occupational Safety and Health Administration (OSHA) said it would focus its enforcement efforts on worksites that put the greatest number of workers at risk. OSHA also announced it is targeting employers who retaliate against workers for complaining about safety violations. In light of this renewed emphasis on anti-retaliation enforcement, it’s important that employers revisit their policies to ensure they are protected from retaliation claims.

Anti-retaliation policy

Under the Occupational Safety and Health Act of 1970, employers must keep workplaces free of known health and safety hazards, and workers have the right to report hazards without fear of retaliation. It is illegal for employers to fire, demote, transfer or otherwise retaliate against a worker who complains to OSHA about a COVID-19 or other safety violation. As part of its NEP, OSHA announced it will distribute anti-retaliation information to workers during inspections and outreach opportunities, and it will promptly refer allegations of retaliation to its Whistleblower Protection Program. Employers can protect themselves with a strong anti-retaliation policy that has commitment from top management and includes systems for receiving and resolving employee complaints and concerns of safety violations and retaliation, as well as anti-retaliation training for managers and workers.

Management commitment

Commitment to a culture in which employees can feel free to raise concerns about workplace safety without fear of retaliation must begin at the top. Senior management must lead the charge in ensuring that systems for reporting COVID-19 and other safety hazards, as well as retaliation, are implemented, enforced and evaluated by a designated manager who is responsible and accountable for these programs. It’s important to get worker input in creating or improving anti-retaliation policies and practices. One way to create a culture in which reporting violations is encouraged is to establish awards for employees who come forward with violations that improve safety (but that allow the employee to stay anonymous if desired). To hold management accountable for preventing retaliation, performance reviews should include whether the manager promptly and constructively addresses employee concerns and champions anti-retaliation initiatives. Appropriate consequences should be in place for managers who retaliate or who violate the confidentiality of an employee who has issued a complaint.

System for workers to report concerns

Establish procedures that allow employees to report safety or other concerns, with options to do so confidentially or anonymously, and provide for fair and transparent evaluation of the concerns raised, even if they appear trivial. A timely response and a fair and effective resolution of concerns must follow. If possible, create multiple reporting channels, such as helplines, anonymous reporting through email boxes or websites, or confidential reporting to a trusted official and/or ombudsmen. Give employees clear and accessible instructions on how they can report safety concerns both internally and externally. Also, provide employees with opportunities to share information informally and to ask questions at an early stage, such as at a town hall-style company meeting, before issues become more difficult to resolve. Keep in mind that the system must not restrict or discourage employees from reporting allegations to OSHA or other regulatory agencies.

Ensure there is no retaliation

When an employee is disciplined, demoted or passed over for a promotion or desirable assignments, take steps to make sure these decisions are made only for legitimate, non-retaliatory reasons and, just as important, that they are not perceived by workers as retaliatory. If an employee who has reported a COVID-19 concern, sickness or other issue is disciplined for something, ask questions such as: Did the employee’s report influence the decision to initiate disciplinary action in any way? Has the employer disciplined other employees comparably for similar conduct? Has the disciplinary action been independently reviewed by a manager who was not involved in the incident? Employees who believe they have been retaliated against should have independent channels for reporting the incident and should not be required to report it to the manager who allegedly committed the retaliation. There should be clearly defined roles and responsibilities for managers at all levels and other personnel who are involved in responding to reports of retaliation, and the procedures should be known and accessible to all.

Management, worker training

Training should be required for all managers to ensure they understand what retaliation is, the employer’s and their own legal obligations, the organizational benefits of anti-retaliation practices, and what it takes programmatically to prevent retaliation. All workers should be trained, as well, about whistleblower protection laws and company policies that apply to them and how they can exercise their rights using internal and external reporting systems.

Monitor your program

Your workplace’s anti-retaliation program needs rigorous oversight to ensure it functions as intended and that it is improved and modified over time as needed. By monitoring your program or having it audited periodically by an individual who is independent of the process, you can assess whether managers are following program policies, whether workers seem unafraid to come forward, whether there are barriers or deficits in the system, and whether additional training is needed.

If you need assistance with an anti-relation policy or other OSHA compliance matters, or if you are contesting an OSHA citation or preparing for the OSHA inspection process, give us a call. The OSHA lawyers at Pappas Grubbs Price PC have deep expertise in all OSHA matters.