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UPDATE: OSHA Again Delays Accident Reporting/ Drug Testing Rule and Issues Interpretive Memorandum on Rule

By: Evelyn Schonberg | 10/24/2016 | Category: OSHA-General
In our article dated July 25, 2016 we informed you of OSHA’s new work-related reporting procedures and the anti-retaliation provisions. At that time, OSHA delayed implementation of the new provisions until November 1, 2016. On October 19, 2016 OSHA issued a news release in which it announced that it is further delaying enforcement of the new provisions until December 1, 2016. The reason for this most recent delay is that the U.S. District Court for the Northern District of Texas needs additional time to consider pending motions in a case challenging the new provisions.

The lawsuit currently pending in Texas is challenging the anti-retaliation provisions on the ground that OSHA did not demonstrate that the new provisions would actually reduce injury rates and that the Administrative Procedures Act was not followed in promulgating the new rule. The court is deciding whether to grant a preliminary injunction to prevent OSHA from beginning to enforce these provisions. If such an injunction is granted, the new rule would be indefinitely stayed pending further court proceedings.

On the same date it announced the delay in enforcing the rule, OSHA also issued a Memorandum for Regional Administrators that interprets the new rule in the event the injunction is not granted.

In the Memorandum, OSHA identifies the following type of accident reporting procedure it considers to be reasonable and not unduly burdensome - - one allowing for reporting of work-related injuries and illnesses within a reasonable timeframe and manner after the employee has realized that he or she has suffered a recordable work-related injury or illness. OSHA states that it would be reasonable to report “as soon as practicable after realizing they have the kind of injury or illness they are required to report to the employer, such as the same or next business day when possible.” However, it would be unreasonable to discipline for failing to report “immediately” when the employee is incapacitated due to the injury or illness.

In describing the new anti-retaliation rule, OSHA explained that the rule was aimed at three types of policies:

  1. Disciplinary policies: According to OSHA, the new rule does not prohibit disciplining employees who violate “legitimate safety rules or reasonable reporting procedures.” Rather, the new rule prohibits disciplining employees because they report a work-related injury or illness. The central inquiry that will be whether the employer treated other employees who violated the same rule in the same way regardless of whether the other employees reported an injury or illness. As becomes clear, disproportionate discipline in such circumstances would result in the issuance of an OSHA citation.

  2. Post-accident drug and alcohol testing policies: The Memorandum reiterates that the new anti-retaliation rule does not prohibit drug testing conducted under a state workers’ compensation law or other state or federal law. Rather, the new rule “only prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so.” Thus, drug testing under DOT regulations, for instance, remains unaffected. However, if an employer is enrolled in Ohio’s Drug Free Safety Program (DFSP), be aware that it dictates post-accident testing of anyone who may have caused or contributed to an accident following an accident investigation, which determines, among other items, whether testing is appropriate. It thus appears that even under the DFSP, an employer will need to establish a reasonable basis for believing that drug use could have contributed to the injury or illness before ordering a post-incident test.

    As an example of when a post-incident would be reasonable, the Memorandum posits a crane accident that injures several employees but not the operator. The cause of the accident is unknown and it is reasonable that it could have been caused by the operator or mistakes by employees responsible for ensuring the crane was in safe working condition. OSHA states that a post-incident test would be reasonably imposed upon all employees whose conduct could have contributed to the accident, whether or not they reported an injury. If, on the other hand, a post-incident test was only imposed upon injured employees and no others who may have contributed to the accident, the new rule would be violated.

  3. Employee incentive programs: OSHA reiterates is long-held position prohibiting incentive programs that take adverse action against employees simply because a work-related incident is reported. Hence, an incentive program that raffles off a $500 gift card each month in which no lost time incidents occur would be considered as violating the new rule since the mere reporting of a lost-time incident would withhold the gift card from all employees. However, if the gift card was conditioned upon compliance with legitimate safety rules or participation in safety-related activities, the program would not violate the new rule.
It is recommend that any change in the policies impacted by the new rule be delayed until December 1, 2016. In the event the new rule is upheld, all employers will need to closely review the policies, procedures and programs discussed above to ensure they comply with the new rule and thereby eliminate the risk of an OSHA citation being issued.

Ross, Brittain & Schonberg Co., L.P.A.

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