Recent redundancy exercises – learning points for HR, Part 1

Large-scale redundancies may not be happening (fortunately) to the same extent as in the aftermath of the financial crash of 2008 (and it’s too early to talk meaningfully about the possible implications of Brexit), but we are still often asked to advise clients in connection with smaller-scale redundancy exercises, often arising as a result of a business restructure.

In this blog post and six more to follow it, we share learning points for HR from recent redundancy exercises we have advised on.

Ensure selection criteria are clear and address the challenges faced by the business

We all know that you need to use selection criteria that are so far as practicable objective and job-related. This can sometimes be more easily said than done.  Ideally the managers running the business should be involved in selecting the criteria to ensure you retain those employees with the skills and experience you require in the business going forward.

Think also about the weighting of your criteria – is a 3 in “time-keeping” really as valuable as a 3 in “business development skills”? If certain attributes are more important to the company’s future than others, then reflect this in the weightings or you will find your selection decisions hobbled by good scores in unimportant respects.

On a related point, keep your scoring simple, 1 to 5 at most. Bear in mind that someone who is put at risk after a scoring exercise may have only a point or two off safety, so the ability to defend and justify that gap will be paramount.  If you score out of 10, therefore, you will need to be able to explain what separates a 6 from a 7 or an 8 from a 9 in each criterion, which will be substantially impossible in most cases since the gradations are too fine.

When choosing your criteria, remember also: (i) that if you are looking at 20 or more redundancies within 90 days you will need to consult about the criteria with elected staff representatives (and that “consult” means that you have not definitively already chosen them); and (ii) that internal email discussion of proposed criteria will all be disclosable in Tribunal, so do avoid any reference to ensuring that your criteria will allow you to retain Mr X and weed out Ms Y, etc.

Check that your scorers understand what you mean by the chosen criteria. In a recent exercise the employer had chosen “skills and experience” and “performance” as separate selection criteria.  Whilst these were intended by HR to mean different things (“skills and experience” referred to qualifications and past experience and “performance” referred to an employee’s performance in his current role) the managers carrying out the exercise were unclear how they differed, which made it very difficult for them to carry out an effective selection exercise. As a result they struggled to deal with questions from employees when challenged about them and could have come badly unstuck under cross-examination in Tribunal.  Make sure also that they understand any relevant scoring “rules” (e.g. any sort of forced ranking) and that giving everyone an “average” score to avoid later grievances is totally self-defeating.

Last, it is worth HR going through the provisional list of “at risk” employees to identify any who are (or have been) on maternity leave or long-term sick leave in order to ensure their selection has not inadvertently been influenced by discriminatory factors.

Arizona Attorney General Intervenes in Serial Arizonans with Disabilities Act Cases

Arizona is just one of many states in which business owners – many of them, small business owners – are being inundated with lawsuits filed by disabled individuals or disability advocacy organizations alleging inaccessible public accommodations.  These serial litigants allege that the defendants have failed to comply with the Americans with Disabilities Act (“ADA”) or its various state analogs – in Arizona, the Arizonans with Disabilities Act (“AzDA”) – by failing to remove barriers to access, rendering the places of public accommodation they own or operate inaccessible to the disabled community.

Under the ADA, a party may seek injunctive relief to force non-compliant places of public accommodation to remediate barriers to access, and recover attorneys’ fees and costs if successful.  The AzDA largely mirrors the federal statute, but, unlike the ADA, plaintiffs in AzDA actions can recover compensatory damages up to $5,000, though the state statutory scheme encourages “alternative means of dispute resolution,” such as settlement, conciliation, and mediation.

Although the ADA has been litigated since it was enacted in 1991, in the past year, an entity called the Advocates for Individuals with Disabilities LLC (“AID”) has filed more than 2,000 nearly identical lawsuits in Arizona – sometimes dozens of lawsuits filed per day – alleging technical violations of the ADA design accessibility guidelines, such as insufficient parking spaces for disabled patrons.  As reported by the local news, AID makes limited pre-filing inquiries of business owners before suing for injunctive and monetary relief, plus attorneys’ fees.  The lawsuits generally do not allege that any specific disabled individual encountered any of the alleged barriers to access, just that the mere alleged existence of a barrier to access deters the disabled from visiting the place of public accommodation.

AID’s attorney, Peter Strojnik, admitted in the news media’s investigation that AID tenders a standard opening settlement demand of $7,500 in exchange for settlement and dismissal of his client’s lawsuit. Weighing the costs of defense, many targeted business elect to settle rather than incur attorneys’ fees defending the action, which are rarely recoverable. According to AID, its average monetary settlement in the hundreds of cases it has resolved so far has been $3,900 per case, not including the costs of remediation, which must also be borne by the defendant.  Although AID defends its unorthodox litigation approach as an attempt to achieve accessibility for the disabled, critics disagree, alleging the scheme exploits the laudable goals of the ADA and AzDA.

Siding with the scheme’s critics, this week, the Arizona Attorney General (“AzAG”) filed a motion to intervene in one of the thousands of AID-filed lawsuits, citing the State’s interest in seeing that AzDA’s alternative dispute resolution procedures are implemented and to prevent, according to the AzAG’s motion, “a concerted effort to improperly use the judicial system for [AID’s] own enrichment.”  The AzAG promises it will seek to consolidate, and then move to dismiss, the hundreds of nearly identical cases AID has filed.

Although AID is one of the most prolific ADA serial litigants, this is not a phenomenon occurring only in Arizona.  Its lawyer, Mr. Strojnik, has not only filed thousands of cases in Arizona’s state court, but hundreds of cases in federal court as well.  Other so-called disability advocacy organizations like AID, such as the National Alliance for Accessibility, Inc., have filed hundreds of such cases against businesses nationwide.  Businesses served with lawsuits alleging ADA or state law accessibility violations are encouraged to seek counsel early to evaluate whether to take a more aggressive approach than acquiescing to the litigants’ settlement demands.  More aggressive litigation tactics may help to slow the rising tide of serial disability litigation. And while the AzAG’s intervention in this spate of Arizona cases is encouraging, the most effective long-term solution to the rise of serial ADA litigants would be a statutory amendment to require a pre-filing notice-and-cure period and the adoption of alternative dispute resolution measures like those adopted by the Arizona legislature that the AzAG is attempting to enforce.

Not all fun and games – new guidance on reporting executive remuneration

Some legal blogs stretch their analogies too far. This one doesn’t.  Whether or not you actually care about who won the synchronised swimming, what happens to unsuccessful North Koreans or why you would invent a mugging while trashing a toilet, do take a look at this clever piece on executive remuneration as an Olympic sport.  Sarah Nicholson from our Corporate team in Birmingham gives you the lowdown on what you can do with your directors’ pay to get you gold, leave you disqualified or fail the dope test.

You can find the piece on our Comp and Bens blog here http://www.globalcompensationinsights.com/

NLRB Concludes Graduate Assistants Are Employees, Authorizing Unionizing Attempt

In a much anticipated decision, the National Labor Relations Board on August 23 ruled 3-1 that Columbia University graduate students who perform teaching assistant and research assistant services at the university in connection with their studies are employees within the meaning of the National Labor Relations Act. The Board’s decision clears a path for private university graduate assistants throughout the US to unionize.

The Board reached its decision by overruling its 2000 decision involving Brown University, in which it held that graduate assistants were not employees covered by the Act and could not unionize. The Board reasoned in its Brown University decision that it would not exercise jurisdiction over relationships which are “primarily educational.”  The Board in Columbia University, however, concluded that its prior decision was wrongly decided and the fact there is an additional, non-economic academic relationship does not mean the Board may disregard the employment relationship protected by the Act.

Unsurprisingly, the lone dissenter was the sole Republican Board Member, Philip Miscimarra.  Member Miscimarra also was the lone dissenter in two additional decisions issued by the Board on August 23 also involving universities, Saint Xavier University and Seattle University.  In those decisions, the Board found that the universities’ part-time faculty are covered by the Act but that faculty in these religiously-affiliated universities’ religious studies and theology departments could not be included in a unit of faculty eligible to unionize.

Ninth Circuit Widens Circuit Split on Enforceability of Class and Collective Action Waivers In Individual Employment Arbitration Agreements

Ninth Circuit joins Seventh Circuit in holding that class and collective action waivers in arbitration agreements violate the National Labor Relations Act and therefore are unenforceable.

The question is straightforward enough:  does an employer violate the National Labor Relations Act (NLRA) by requiring that employees sign an agreement to arbitrate any claims concerning their wages, hours, and terms and conditions of employment only on an individual basis, and precluding them from raising those claims in the form of a class or collective action?

The answer unfortunately is not straightforward, and has become a shifting target, varying on which forum an employer happens to find itself in.

The main players on this issue, until recently, have been the National Labor Relations Board (NLRB) and the Fifth Circuit Court of Appeals, which has jurisdiction over Texas, Louisiana, and Mississippi.  The NLRB repeatedly has made clear its view on the matter, holding in dozens of cases that class and collective action waivers in individual employment arbitration agreements violate the NLRA.  Under the NLRA, employers have the option to appeal an adverse NLRB decision to the either District of Columbia Circuit Court of Appeals, or to any circuit in which the business has sufficient business operations – even if the violation alleged occurred in a different circuit.  (So, for an example, an employer faced with an adverse NLRB decision arising out of claim filed by one of its employees in Illinois – which is in the Seventh Circuit – could nonetheless appeal that decision to the Fifth Circuit if it also does business in, for example, Texas.)  As a result, employers with operations in Texas, Louisiana, or Mississippi have appealed adverse NLRB decisions invalidating their arbitration agreements containing class and collective action waivers to the Fifth Circuit, as that court has rejected the NLRB’s position not once but twice, and has consistently ruled that individual employment arbitration agreements containing class and collective action waivers are lawful and unenforceable under the Federal Arbitration Act.

Until recently, these cases followed this same pattern – with the NLRB finding the waivers unlawful and the federal appellate courts disagreeing with the NLRB – until this past May, when the Seventh Circuit sided with NLRB’s interpretation on the issue.  The Seventh Circuit explained that given the NLRA’s “intentionally broad sweep, there is no reason to think that Congress meant to exclude [protection of] collective remedies from its compass.”  The Seventh Circuit’s decision made it the first and only federal appellate court to side with position staked out by the NLRB, in contrast to decisions out of the Second, Fifth, Eighth, and Eleventh Circuits which disagreed with the NLRB.

Until now.

On August 22, a split three-judge Ninth Circuit panel issued an opinion agreeing with the Seventh Circuit and NLRB on this issue.  The plaintiffs in the Ninth Circuit’s decision are a group of employees who filed a class action lawsuit alleging that their employer improperly classified them as exempt from California and federal law requiring that they be paid overtime compensation.  Their employer sought to dismiss the lawsuit on based on arbitration agreements each of the putative class members signed in which they agreed to waive their right to bring class or collective action claims and instead to arbitrate their claims on an individual basis.  The Ninth Circuit panel, however, refused to enforce these waivers, explaining that in its view, it is a well-established principle that “employees have the right to pursue work-related legal claims together,” and this right “is the essential, substantive right established by the NLRA.”

The Ninth Circuit remanded the case to the District Court with instructions for the Court to determine whether the collective action waiver was severable from the remaining provisions of the agreement, specifically the agreement’s arbitration provision.

The Ninth Circuit’s recent decision thus widens the circuit split, making it much more likely this issue makes its way to the Supreme Court sooner, rather than later.  However, given that the Supreme Court is operating at less than a full complement, it remains to be seen whether the NLRB will appeal the Fifth Circuit’s Murphy Oil  decision and risk a split decision from the Supreme Court, which would affirm the lower court’s decision on a non-precedential basis, or whether it will sit back and wait for one of the employers in recent Seventh Circuit and Ninth Circuit decisions to take the matter to the nation’s high court.  Until then, employers in the Seventh Circuit and Ninth Circuit will be unable to avoid class and collective actions by enforcing waivers in arbitration agreements.

 

Uber’s $100 Million Settlement Gets Wrecked

In a 35 page Order [PDF] issued on Thursday, August 18, Judge Edward M. Chen dealt a surprising blow in O’Connor v. Uber Technologies, Inc.:  he denied preliminary approval for a $100 million settlement.  In no uncertain terms, Judge Chen said the current terms of the settlement are “not fair, adequate, and reasonable.”  In the Order, Judge Chen noted that both the structure and amount of the settlement fail to pass muster.  Specifically, Judge Chen discussed the pending 9th Circuit appeal regarding Uber’s arbitration clause.  If the 9th Circuit finds Uber’s arbitration clause is valid, then around 90% of the plaintiff’s–and 90% of the settlement–would disappear.  Nevertheless, Judge Chen felt the value might be “at the low end of reasonable recovery” had the parties not included a Private Attorneys General Act (PAGA) waiver.

What does that mean? It means plaintiffs’ argument that their PAGA claim was worth up to $1 billion may have set the tone for reasonableness of the settlement.  The current settlement structure allocates a meager $1 million to the PAGA claim, only 0.1% of the alleged potential verdict value, and Judge Chen said he “cannot find that the PAGA settlement is fair and adequate.”

Judge Chen also addressed another significant oversight in the settlement, whether drivers are employees or independent contractors. The looming uncertainty of whether Uber drivers are employees or independent contractors is a major risk to both parties.  Although not fatal, the absence of any certainty appears to have played a role in Judge Chen’s decision.

This all spawns from a massive class-action lawsuit, O’Connor v. Uber Technologies, Inc., alleging Uber improperly classified drivers as independent contractors, depriving them of significant benefits and protections. On Thursday, April 22, the parties settled for $100 million.  As we noted here, this settlement left several questions unanswered.  Apparently Judge Chen felt the same way.  For now, the parties must take a few more laps around the negotiating table.

Severance pay tax reforms show their true colours

So there it is – to no-one’s really very great surprise, the Government consultation document on the simplification of the tax and NI treatment of termination payments turns out not to be about simplification after all, but just a naked tax grab. This was reasonably apparent from the chronically ill-considered nature of the original consultation document and has been put beyond argument by the issue this month of the Government’s response to the feedback it has received over the intervening year.

The headlines are these:

  • all notice payments will be taxable, whether the employee works his notice or is paid in lieu and (if paid in lieu) whether there is a PILON or not;
  • severance compensation which isn’t contractual and isn’t notice pay remains tax free up to £30,000;
  • payments over £30,000 will now attract employer’s NI as well as income tax;
  • compensation for injury to feelings (as opposed to actual psychiatric injury or other recognised medical condition) will become taxable and so no longer represents a means of paying more than £30,000 tax free;
  • foreign service relief is mostly abolished, though no-one really cared too much about that anyway.

So far, so predictable.  However, the response also contains some breathtaking exercises in self-justification by HMRC:

  • “The Government will continue to support individuals when they lose their job by ensuring that the first £30,000 of a termination payment remains exempt from income tax”, but it sticks a knife into those same individuals by procuring that the one bit of severance pay they are almost bound to get, their notice pay, can no longer be paid without deduction of tax.  In other words, those who get least from their former employer are the most disadvantaged by the Government’s stance.
  • Making injured feelings money taxable is “because of the divergence of judicial decisions about this issue”, though this is a divergence which (i) is actually reasonably clear in its application; (ii) could easily have been resolved in favour of the employee rather than the Government, but; (iii) somehow wasn’t.
  • Removing uncertainty around some types of payment will ensure that the £30,000 exemption … can only be used for payments that are genuinely the result of an individual losing their job”.  A payment which more directly results from losing your job than your notice pay is hard to imagine, you might think, but never mind.

But the real stake through the heart of simplification as a genuine objective of this exercise lies in the stealth extension of the tax regime not just to notice pay but to all and any other sums or benefits or bonuses which the employee “would or should have received” had he worked his notice period.  The intention is clearly to stop employers commuting sums which would have been taxable if paid during the notice period into non-taxable severance payments.  The principle is clear enough but the Government’s first crack at addressing it in legislative drafting is a real mess, a rash of sub-sections (indeed, pages) of inter-reliant definitions and algebraic formulae such as this little treasure (the proposed ITEPA Section 402D(5)); “A payment is within this sub-section if it is a payment … that the employee could reasonably be expected to receive by reference to the employment and in respect of times before the end of the employment were the employee to continue in the employment long enough to receive it and … that has not been received before the employment ends”.  What?

An assessment is made of what the employee “would have received” during his notice period by reference to what he received in the 12 weeks before he was given notice (excluding bonus), not what he actually received during that time.  If any step is taken to reduce that average artificially, whether lawfully or not, the taxable amount will be based on an average from prior years, albeit that they may be totally unrepresentative of the present year.

The Government is not seeking to tax people on severance payments which they never received, though that does appear to be one possible next step, but it is overtly seeking to squeeze every last penny of tax out of employers and employees at the very time those employees need those pennies most.  For HMRC to dress up what it now proposes as a “simplification” is an insult to the intelligence of the reader.

Costly SEC Settlement Reminds Publicly-Traded Employers of Dodd-Frank Requirements

On April 3, 2015, we reported that the Securities and Exchange Commission (SEC) had sent letters to numerous publicly-traded U.S. companies requesting their nondisclosure agreements, severance and settlement agreements, and other contracts entered into after the enactment of the Dodd-Frank Wall Street Reform and Consumer Protection Act (“Dodd-Frank”) to determine whether the documents unduly interfere with the employees’ ability to report securities violations to the SEC.  As we discussed in this client alert, the SEC’s position is that, post-Dodd-Frank, agreements with employees must be drafted in such a way as to permit disclosure of information by employees to law enforcement and regulatory authorities, including the SEC; to permit confidential communications by employees with the SEC and other authorities; to allow employees to file securities-related complaints with external agencies; and to carve out from waivers of monetary rewards those rewards that are associated with making whistleblower claims.  Any agreements including language to the contrary can be used by the SEC as evidence of retaliation against whistleblowers in violation of Dodd-Frank.

In keeping with this policy directive, the SEC announced on August 10, 2016 that BlueLinx Holdings Inc. settled a claim that the company had violated Dodd-Frank by using severance agreements that required outgoing employees to waive their right to monetary recovery if they file a charge or complaint with the SEC (or other federal agencies including the EEOC, NLRB, and OSHA).  BlueLinx allegedly drafted the severance agreement containing the prohibited language after the adoption of the SEC’s rules interpreting Dodd-Frank. The agreements also restricted departing employees from sharing confidential information or trade secrets unless compelled to do so by law and only after obtaining the company’s written consent.  All of these provisions violate the SEC’s rules implementing Dodd-Frank.

In settlement of the dispute, BlueLinx agreed to pay a civil penalty of $265,000 to the SEC and must revise its standard severance agreements to provide that employees may communicate with and participate in investigations with federal agencies without the company’s approval.  The company must also remove any language purporting to waive the recovery of monetary awards for whistleblowing claims, and make reasonable attempts to notify past signatories of the agreement that the company has revised its policies.

Publicly-traded companies are advised to review their confidentiality, non-disclosure, separation, and settlement agreements with outside counsel to determine whether they comply with the SEC’s requirements and to take steps to amend their standard forms, if necessary.

New TUC report on sexual harassment in the workplace lacks vital statistics

It is sadly impossible to write anything critical about a report on sexual harassment in the workplace without coming over like some frightful old golf club misogynist. To be clear, therefore, none of what follows seeks to belittle the distress of those genuinely harassed at work, but balance nonetheless dictates a counter-point to the TUC’s recent report “Still just a bit of banter?”, produced in association with the randomly capitalised Everyday Sexism Project, also appearing as the Everyday Sexism project and the everyday sexism project.

Based on a January 2016 survey of 3,524 UK adults (of whom only 1,533 were willing to be asked about workplace harassment), plus a March 2016 survey of an unspecified number of union members, key findings in the report are:

  • 52% of women have experienced “some form of” sexual harassment at some point in their working lives, though a dramatically smaller proportion report it in the last twelve months. As a snapshot of current workplace behaviours, the report’s subtitle “Sexual harassment in the workplace in 2016” is therefore a little misleading;
  • Only 20% said that the perpetrator was their direct manager or someone else with direct authority over them. 7% said it was someone external to the employer, like a customer, and 6% couldn’t remember. Despite the finding that by far the largest part of harassment is committed by peers or subordinates, the TUC report cannot resist a pop at management – “several studies have found that perpetrators of sexual harassment tend to be in a position of power over the target of the harassment“, it avers with a straight face, despite its own findings to exactly the opposite effect;
  • 80% did not refer the harassment to their employer (although the statistics later in the report in fact show that only 3% took the issue to their HR department);
  • and the statistic which most exercised TUC General Secretary Frances O’Grady? That only 1% reported the matter to a union official.

If these figures are representative of the UK workforce as a whole, they make pretty grim reading. Whether they are representative is a separate question. We do not know what industry sectors or social groups were polled, nor why some two thirds of those asked had nothing to say on the point. We do not know how many of those who responded were in younger age brackets or in insecure employments and so potentially more susceptible to harassment. The report concedes that the sample size of women in specific types of contract was too small to allow the drawing of any firm conclusions in that respect.

Why was such a tiny proportion of harassment reported? Nearly 30% feared that reporting harassment to their employer would have a negative impact on relationships at work. 15% feared an adverse impact on career and a quarter felt that they would not be believed or taken seriously. A frankly depressing 21% said that they didn’t even know they could report harassment, or were not sure how to do it.

There is no real analysis in the report of why harassment is not more often reported to union officials. However, since the great majority of harassers appear to be colleagues of the victim (and hence presumably as unionised as she is), there must be scope for arguing a lack of confidence that the average union official will be able to manage adequately his conflicting duties to his two members, alleged harasser and alleged victim. Some of the conduct included within the report’s definition of sexual harassment could be entirely inadvertent and without malice. As we know, intention to cause offence is in no way a pre-requisite of harassment. Before the union can advocate zero-tolerance policies by the employer, it would therefore have to do the same itself, i.e. effectively disown any member it considers guilty at any level. This may seem an unlikely outcome. A 1% report rate is even more woeful than the 3% to HR, but the cause of that problem may lie closer to home for the union movement than this report seems to suggest.

As to outcomes when harassment was reported, 70% saw no difference in their employer’s treatment of them, 10% thought the employer’s behaviour had improved, 16% that it had got worse and 3% didn’t know one way or the other. What is not clear from the paper is whether reporting harassment led to any difference in treatment by the complainant’s peers, rather than the employer, since it is they who appear to be primarily responsible.

The report concludes with a series of predictable but unlikely recommendations for Government and employers. For the Government: abolish ET fees, implement the third party harassment provisions from the Equality Act and extend employment rights to all workers (notwithstanding that all workers do already benefit from protections against harassment). For employers: provide “decent jobs and decent pay” (a bit off-piste in a sexual harassment report, but presumably thought to be worth a go anyway); more training of “HR and all levels of management” (only later conceding that “training for all staff may be appropriate“); and implementation of policies to avoid “inadequate management responses“. These include “disbelieving the complainant“, seemingly allowing no scope for any conclusion, however justified, that he or she is not telling the truth.

The law already provides a remedy for sexual harassment and another for victimisation. There is a fee but if the employee cannot raise it or get her union to do so, the Tribunal remission scheme may well help. However, no legislation and no employer can protect against a fear of damaging relationships at work and in particular, no legislation and no employer can provide recourse for sexual harassment complaints which the victim does not make in the first place.

New OSHA Rule Limits Permissible Post-Accident Drug Testing

Employers, it may be time to check your drug testing policies again. Though drug testing regulation is usually a function of state or local law, the latest regulation affecting employee drug testing is brought to you by the U.S. Department of Labor’s Occupational Safety & Health Administration (“OSHA”) and specifically addresses post-accident drug testing.

OSHA’s new final rule became effective August 10, 2016, and amends requirements set forth in 29 C.F.R. § 1904.35.  One of the stated goals of the final rule is to promote “accurate recording of work-related injuries and illnesses by preventing the under-recording that arises when workers are discouraged from reporting these occurrences.”  Accordingly, the rule requires employers to:

“[E]stablish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.  A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness…”

Moreover, the rule requires that in addition to informing employees of its established reasonable procedure(s) for reporting injuries or illnesses, employers must also explain to employees (i) that they have a right to report work-related injuries and illnesses; and (ii) that employers are prohibited from discharging or in any manner discriminating against employees making such reports.

So what does any of this have to do with employee drug testing?

Excellent question.

While the text of the final rule does not expressly address drug testing, the comments extensively discuss the topic, explaining that “blanket post-injury drug testing policies deter proper reporting.”[1]  According to OSHA, a number of studies, as well as recordkeeping data, support the idea that many workers are deterred from reporting injuries due to their employer’s post-injury drug testing policies and programs. As a result, the comments to the final rule explain that, in order for an employer to require post-incident drug testing, there must be “a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness.” However, the final rule appears to stop short of requiring the familiar “reasonable suspicion” standard adopted by many states, as the comments that explain employers “need not specifically suspect drug use before testing.”

OSHA makes clear that the intent behind the final rule is not to ban all post-accident drug testing of employees.  Rather, the final rule requires that employers “strike the appropriate balance” and utilize drug testing policies that “limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

The comments further explain that the revisions to § 1904.35 brought about by the final rule are not intended to change the substantive obligations of employers, but rather to provide an enforcement tool to OSHA by allowing it to issue citations to employers for retaliating against employees for reporting work-related injuries or otherwise violating the rule. OSHA is cognizant that the final rule may have a chilling effect on employers’ enforcement of safety rules following a workplace incident. As a result, the comments make clear that “the final rule prohibits employers only from taking adverse action against an employee because the employee reported an injury or illness,”[2] not against employers for enforcing health and safety policies.

Although the new rule became effective August 10, 2015, OSHA has indicated it will not enforce the rule until November 1, 2016, giving employers time to conform their practices and policies with the new rule. Employers should review their drug testing policies to ensure compliance with OSHA’s new rule, as well as applicable state law.

 

[1] Emphasis added.

[2] Original emphasis.

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