OSHA’s New Guidelines for Employer Anti-Retaliation Policies

January 18, 2017

Most employers and employees know that the Occupational Safety and Health Administration (OSHA) is the federal agency charged with overseeing safety and health in U.S. workplaces.  Many are surprised, however, to learn OSHA is also responsible for enforcing 22 whistleblower protection statutes that don’t necessarily have anything to do with worker safety and health.

These 22 statutes, ranging from the Affordable Care Act to the Wendell H. Ford Aviation Investment and Reform Act, and everything in between, are designed to protect employees from retaliation for reporting a variety of concerns and issues in the workplace.  Retaliation can include any adverse employment action, including harassment, lack of promotion, demotion, discipline, and termination.

OSHA has just issued its long-awaited “Recommended Practices for Anti-Retaliation Programs”.  These guidelines, intended for private, public, and non-profit employers of all sizes, are the product of a 12-member advisory commission after receiving a number of comments from employer and employee advocacy organizations.

The recommended practices are centered around what OSHA calls five “key elements to an effective anti-retaliation program”:

●          Management leadership, commitment, and accountability

●          Procedures for listening to and resolving employees’ concerns

●          Procedures for receiving and responding to reports of retaliation

●          Anti-retaliation training

●          Program oversight

OSHA maintains these recommended practices are voluntary and do not create new legal obligations.  OSHA also has stated that neither adopting nor failing to adopt the practices is any indication of an employer’s good faith or lack of good faith in a particular case.  Regardless of whether or not employers adopt the new recommendations from OSHA, it is always advisable to have anti-retaliation provisions in effect and to periodically review employee handbooks and policies to make sure that such provisions are up-to-date.

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