OSHAs New Recordkeeping Rule Requirements Drug Testing and - - PowerPoint PPT Presentation

OSHA’s New Recordkeeping Rule Requirements

Drug Testing and Incentive Programs

January 10, 2017 Co presented by Joshua Scott

Center for Health, Work and Environment

Kristin White

Jackson Kelly

Confidentiality Note: This presentation from the law office of Jackson Kelly PLLC and the Center for Health, Work, and Environment @ the Colorado School of Public Health is for the sole use of the intended viewers and contains confidential and privileged information. Any unauthorized review, use, disclosure, distribution, or other dissemination of this presentation and/or the information contained herein is strictly prohibited.

New Regulation

• On May 12, 2016, OSHA amended

the Recordkeeping Regulation:

• Some employers required to electronically

submit injury and illness records to OSHA annually

• Explicit anti-retaliation provisions

Anti-retaliation provisions

Disciplinary, Drug Testing and Incentive Programs

Current Anti-Retaliation Protection

• Recordkeeping Rule
• Record injury or illness in 7 days
• Employee must be able to report an injury or illness promptly
• Section 11(c) of the OSH Act
• Prohibits retaliation for injury reporting
• Employee has 30 days to file complaint
• No individual cause of action

New Anti-Retaliation Provisions

• Under new provisions, employer must:
• Inform employees of their right to report injuries

and illnesses free from retaliation

• Provide “reasonable” reporting procedures that

do not deter or discourage employees from reporting

• Refrain from taking “adverse action” against

employee for reporting

Reasonable Reporting System

Test:

Whether the reporting procedures would deter a “reasonable employee” from reporting a work-related injury or illness

Reasonable Reporting System

• Reporting procedure should not require

multiple steps

• “Rigid” reporting requirement
• Reporting rules cannot penalize workers who did

not immediately realize the seriousness of injury - Fairfax Memo (3/12/12)

• Reporting procedures must allow reporting of

injury/illness within “reasonable” timeframe after employee realizes they have suffered a work- related injury

Reasonable Reporting System

• US Steel Case Example
• Requiring reporting of all incidents, not just serious

injuries

Adverse Action: Disciplinary Policies

• Disciplining employee who reports injury/illness

regardless of whether employee violated safety rule

• Disqualifying employee who reports

injury/illness from promotion or bonus

• Pre-textural discipline based on violation of safety rules
• Safety rule only enforced when employee injured
• Rule is vague – “maintain situational awareness”

Adverse Action: Drug Testing

• Structure Testing Program in a way that does not

limit reporting

• Employers must limit drug testing to incidents in which

there is a reasonable possibility that drug use was a contributing factor to the incident

• Impairment Considerations currently limited to Alcohol
• Employers may continue to conduct drug testing

required to comply with workers’ compensation and

• ther state or federal laws

Adverse Action: Drug Testing

• Blanket post-injury drug testing could

violate the rule –it’s the incident not the injury that matters

• Examples:
• Bee Sting
• Repetitive Strain Injury
• Tool Malfunction

Drug Testing in Practice

• Testing for all injuries as opposed to

those requiring medical treatment

• Industry reactions to rule

Adverse Action: Incentive Programs

• Does not ban incentive

programs

• Programs must be structured in

a way that it encourages safety without discouraging reporting

• i.e., rule based

Incentive Programs

• Examples of programs that could violate rule:
• Entering employees who did not report injuries in drawing
• Awarding bonus to team if no one reported injuries
• Rate-based incentive programs that reward workers or

supervisors for achieving low rates of reported injury and illness

Incentive Programs

• OSHA encourages incentive

programs that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations or injuries, incidents,

• r ‘near misses’.

Enforcement

• The rule “allows OSHA to issue citations to employers for

retaliating against employees for reporting work-related injuries and illnesses and require abatement even if no employee has filed a Section 11(c) complaint”

• An “abatement order can be a more efficient tool to correct employer

policies and practices than injunctions” under § 11(c)

Enforcement

• BUT…to issue a citation OSHA must

have reasonable cause to believe a violation occurred

• AND… Prove it
• Circumstantial evidence is ok

In order to issue a citation, OSHA must prove -

• 1. An employee reported a work-related injury or illness;
• 2. An employer took adverse action against the employee;

and

• 3. An employer took the adverse action because the

employee reported a work-related injury or illness, not for legitimate business reason,

Enforcement: Issuing a Citation

What is the Remedy?

• To “abate” a violation of the anti-retaliation provisions

in the Recordkeeping regulation, employer could be required to:

• Remove discipline from file
• Reinstate employee
• Pay back pay

Implications

• OSHA is not be required to rely on employee to file

whistleblower complaint

• Additional time to pursue employers for alleged

retaliation

• 6 months v. 30 days

Effective Date

• Anti-retaliation provisions were effective on December 1,

2016

• These provisions apply to all employers required to

maintain injury and illness records regardless of establishment size

Questions?

For more information on these and other

• ccupational safety and health topics,

please visit:

http://safety-health.jacksonkelly.com/ & chwe.ucdenver.edu

Kristin R.B. White, Esquire 1099 18th Street, Suite 2150, Denver, CO 80202 Phone: (303) 390-0006 • Fax: (303) 390-0177 kwhite@jacksonkelly.com • www.jacksonkelly.com Joshua Scott 13001 E. 17th Place 3rd Floor, Building 500, W3111 303.724.9571 (o) | joshua.scott@ucdenver.edu (e) www.chwe.ucdenver.edu