OSHA Quietly Issues Guidance on Incentive Programs, Disciplinary Programs and Drug-Testing Programs

On October 19, 2016, OSHA published a memorandum interpreting the new anti-retaliation provisions in Section 1904.35 as part of the new final rule – “Improve Tracking of Workplace of Injuries and Illnesses.” In conjunction with the memorandum, OSHA also provided example scenarios of incentive, disciplinary and drug-testing programs and how the new rule may be interpreted to those scenarios on its website.

Revised section 1904.35 requires employers to establish reasonable procedures for reporting a work-related injury or illness and prohibits employers from retaliating or taking adverse action against employees for reporting work-related injuries or illnesses.

While not explicitly stated in the final rule, OSHA made clear in the rule’s regulatory history that the agency considered certain types of incentive programs, disciplinary programs and post-accident drug testing to deter employees from reporting work-related injuries or illnesses and would constitute a violation of the new provisions.  The new guidance issued last week explains the agency’s position in more detail and in some instances seems to be a reversal of earlier stated positions. OSHA states specifically, “the rule does not ban appropriate disciplinary, incentive, or drug-testing programs” and then outlines what appropriate programs would be according to OSHA.

Disciplinary Programs

According to OSHA, “the rule does not prohibit disciplinary programs. However, employers must not use disciplinary action, or the threat of disciplinary action, to retaliate against an employee for reporting an injury or illness.”

OSHA provided several examples of instances of disciplinary programs that would violate section 1904.35(b)(1)(iv):

  • Automatically suspending an employee who reports a work-related injury.
  • Assigning employees points that have negative employment consequences for reporting a work-related injury.
  • Pre-textual discipline, such as disciplining an employee for allegedly violating a safety rule but the real basis for discipline was the injury or illness report. Here, OSHA would look to see if other employees are also disciplined for violating the same safety rule in cases where a violation of that safety rule does not result in any injury.
  • Rigid prompt reporting requirements, such as disciplining for not immediately reporting a work-related injury in cases where the employee has not yet had time to identify a work-related injury has occurred.

One of the examples provided by OSHA was an employer disciplinary program that would discipline an employee who is injured when he is stung by a bee for violating the company’s rule to “maintain situational awareness” and the employer only disciplines for violations of this safety rule when employees are injured. OSHA would consider this a violation of section 1904.35(b)(1)(iv).

On the other hand, an employer who disciplines an employee for by-passing a guard , contrary to the employer’s safety policies, even when that employee is injured would not be a violation of section 1904.35(b)(1)(iv).

OSHA also clarified that employers who discipline employees for not reporting work-related injuries “immediately” or “as soon as practicable” is permissible where employers allow sufficient time for employees to realize they have suffered a work-related injury. For example, an employee twists his ankle at work but does not immediately realize he is injured and the next morning his ankle is swollen and he reports his injury. Disciplining an employee for failing to report the injury “immediately” would violation section 1904.35(b)(1)(iv).  However, if this same employee waits a week once he realizes his ankle is swollen and he has suffered a work-related injury then disciplinary action in this case would not be a violation.

A key aspect for any employer disciplinary program will be consistency and whether the employer applies the policy consistently to all employees – those injured and not injured.

Incentive Programs

According to OSHA, “employers must not use incentive programs in a way that penalizes workers for reporting work-related injuries or illness.” Rather, OSHA recommends incentive programs that reward for employee participation in safety program activities and evaluations, completion of employee training, and safety walkthroughs and identification of hazards.

OSHA provides an example of a cash prize raffle for each month without a lost time incident. “If the employer cancels the raffle in a particular month simply because an employee reported a lost-time injury without regard to the circumstances of the injury, such a cancellation would likely violation section 1904.35(b)(1)(iv) because it would constitute adverse action against an employee simply for reporting a work-related injury.”

 Drug-Testing Programs

OSHA appears to have slightly reversed course in the area of post-accident drug testing. Initially, the agency took the position that drug-testing in compliance with state and federal law or reasonable suspicion drug testing was permissible, but it was not clear that testing in compliance with worker’s compensation laws would also be permissible.  The agency has now made clear that “drug testing conducted under a state worker’s compensation law or other state or federal law” does not violate the new rule.

The memorandum does reaffirm the agency’s position that “the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.” OSHA offers an example of an employee who reports a injury sustained as by-stander being drug tested – this would be in violation of the rule because the injury could not possibly have been caused by drug use.

In contrast, drug testing an employee who is injured when he inadvertently drives his forklift into another piece of equipment would not be in violation of section 1904.35(b)(1)(iv) because the employees “conduct – the manner in which he operated the forklift – contributed to his injury, and because drug use can affect conduct.” “Drug testing an employee who engaged in conduct that caused an injury is objectively reasonable because conduct can be affected by drug use.”

In the final rule, OSHA indicated that only drug tests that can indicate impairment at the time of the injury or illness would be permissible. The only test capable of such a determination is an alcohol test.  However, in the memorandum, OSHA clarified that “OSHA will consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available.  Therefore, at this time, OSHA may consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.”

For further analysis on OSHA’s new guidance as it relates to employer drug testing programs please see a recent post by Kathryn J. Russo on the Drug & Alcohol Testing Law Advisor.

OSHA Agrees to Further Extension for Anti-retaliation Provisions

In response to a request from a federal judge, OSHA has agreed to extend the effective date of the anti-retaliation provisions in it’s new final rule, Improve Tracking of Workplace Injuries and Illnesses until December 1, 2016.

The provisions were originally set to become effective in August and that date was further extended to November 1, 2016 to allow the agency additional time for outreach and education to the regulated community.  The new extended deadline of December 1, 2016 is in response to a request from a federal judge who is presiding over the legal challenge of the new rule.  The additional time was requested to consider a preliminary injunction seeking to permanently delay the effective date of the standard until a decision is reached in the case.

Employers now have until December 1, 2016 to comply with OSHA’s anti-retaliation provisions, which require employers to inform employees of their right to report work-related injuries and illnesses without fear of retaliation; to implement reasonable procedures for reporting injuries and illnesses that do not discourage employees from reporting work-related injuries or illnesses and prohibit employers from retaliating or discriminating against employees for reporting injuries and illnesses.


OSHA Law Blog Nominated Best Legal Blog

Jackson Lewis is pleased to announce that the OSHA Law Blog has been nominated as a “Best Legal Blog” in the AmLaw category by The Expert Institute. We need your help! If you enjoy the OSHA blog, please vote for us by clicking here. 

Thank you in advance for your vote! We work hard to bring you timely and informative OSHA-related news, and are honored to be nominated for this prestigious award.

Final Rule Overturning AKM-Volks Recordkeeping Decision Expected Soon

In 2012, the U.S. Court of Appeals for the District of Columbia held that OSHA could not issue citations for failing to record an injury or illness beyond the six-month statute of limitations set out in the statute. AKM LLC d/b/a Volks Constructors v. Sec’y of Labor, 675 F.3d 752 (D.C. Cir. 2012).

Unhappy with the unfavorable ruling, on July 29, 2015 OSHA issued a proposed rule “Clarification of Employer’s Continuing Obligation to Make and Maintain Accurate Records of Each Recordable Injury and Illness.” According to OSHA, the rule is meant to “clarify that the duty to make and maintain an accurate record of an injury or illness continues for as long as the employer must keep and make available records for the year in which the injury or illness occurred. The duty does not expire if the employer fails to create the necessary records when first required to do so.”  In short, this agency action is not an attempt to clarify an existing duty but to create a new one by undoing the holding in the Volks case.

Public comments to the proposed rule were submitted in September 2015. On October 14, 2016, OSHA submitted the final rule to the Office of Information and Regulatory Affairs (OIRA) signaling that a final rule may be issued in the next several months.  Under Executive Order 12866, OIRA reviews agency rulemaking to “ensure that agencies carefully consider the consequences of rules (including both benefits and costs) before they proceed.”

OIRA has 90 days to review the final rule and hold stakeholders meetings, if such meetings are requested. After its review, OIRA may clear the rule for promulgation and issuance in the Federal Register or return the rule to OSHA for reconsideration.  If OIRA reviews and clears the final rule it could be issued shortly before the swearing in of the next President in January 2017.


Possible Further Extension on Anti-Retaliation Provisions (Incentive & Drug Testing Policies)

Last week a federal judge requested that OSHA agree to further extend the November 1st effective date for the anti-retaliation provisions in OSHA’s “Improve Tracking of Workplace Injuries and Illnesses” also known as the Electronic Recordkeeping rule.

In May 2016, OSHA published the final rule requiring electronic submission of Part 1904 recordkeeping records to OSHA depending on the employer’s size and industry. Specifically, employers with 250 or more employees (including part-time, seasonal or temporary workers) in each establishment are required to electronically submit their 300, 300A and 301 forms to OSHA on an annual basis and employers with more than 20 but less than 250 employees in certain identified industries are required to electronically submit their 300A form on an annual basis.

Additionally, the final rule establishes employer injury reporting policies and anti-retaliation provisions. The final rule requires employers to develop employee injury and illness reporting requirements that met specific criteria.

Specifically, employers must inform employees of the following:

  • Procedures for reporting work-related injuries and illnesses promptly and accurately.  According to the final rule, a procedure is not reasonable if it would deter or discourage employees from reporting injuries or illnesses;
  • Employees have the right to report work-related injuries and illnesses;
  • Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses.

Under the anti-retaliation provisions OSHA has indicated that certain safety incentive policies and post-incident drug testing policies will be considered as discriminatory because, according to OSHA, they discourage employees from reporting work-related injuries and illnesses. The final rule was challenged by several trade associations and a preliminary injunction was sought to delay the effective date of the anti-retaliation provisions until a decision in the case was reached.   The preliminary injunction requested nationwide relief, including relief for all employers.  OSHA is objecting to this preliminary injunction and the request for nationwide relief.

In an Order issued on October 14, the judge requested that OSHA grant an additional extension until December 1, 2016 to allow the parties additional time to brief the issue of whether a nationwide injunction for the parties as well as non-parties should be granted. OSHA has until October 18th to notify the court in writing as to whether it will grant the extension until December 1, 2016.

OSHA’s Walking-Working Surfaces Final Rule Expected Soon

Last week, OSHA’s proposed rule for Walking-Working Surfaces and Personal Protective Equipment (Fall Protection Systems) in General Industry (Subpart D and Subpart I) cleared the White House Office of Management and Budget (OMB), signaling the forthcoming final publication by OSHA.

This rule has been in the making since 1990 when OSHA originally issued the proposed rule and then updated that proposal in 2010. The rule has two parts – Subpart D, Walking-Working Surfaces and Subpart I, Personal Protective Equipment for Fall Protection. Subpart D sets forth requirements for general industry walking-working surfaces, including when the use of fall protection systems will be required. Subpart I delineates the performance criteria for personal fall protection systems.

OSHA’s objective in issuing the proposed rule in 2010 was to update the standards to reflect current industry practices and national consensus standards and align the standards, to the extent possible, with other OSHA standards in the construction and shipyard industries.

According to the proposed rule, “ The existing OSHA general industry standards recognize the use of guardrails and physical barriers as the primary methods for employee protection against falls. However, those standards do not directly recognize that personal fall protection systems can also provide effective means for employee protection. OSHA believes that the proposed rules will give employers the necessary flexibility to decide which fall protection method or system works best for the work operation being performed, while ensuring employees receive a level of protection that is effective and necessary. OSHA believes many of these slips, trips, and falls can be prevented and has devoted many years to assembling and analyzing information aimed at the elimination and prevention of hazards that cause these incidents.”

OSHA believes that the final rule will prevent 20 fatalities and over 3,000 injuries annually.

U.S. Court of Appeals Blocks New OSHA Fertilizer Rules Because of Improper Rulemaking

The Occupational Safety and Health Administration failed to go through the proper rulemaking process before mandating retailers to implement new stricter storage standards for anhydrous ammonia fertilizer, the U.S. Court of Appeals for the D.C. Circuit has ruled. To read the full article, written by Joseph Dreesen, click here.

OSHA and DOT Issue Joint Memorandum on Hazardous Chemicals

In July 2015, OSHA issued a Directive on the revised Hazard Communication Standard (“HCS”), Inspection Procedures for the Hazard Communication Standard (HCS 2012), CPL 02-02-079. In that Directive OSHA provided guidance on the interplay between labeling under the HCS and other federal agencies, specifically the Department of Transportation (“DOT”). According to the Directive OSHA considers the DOT diamond-shaped placards that contain hazard symbols to be pictograms and therefore in compliance with the requirements of the standard.

According to DOT, the HCS pictograms are not in conflict with a DOT label. Therefore, “OSHA will allow labels to contain both DOT pictograms (labels as they are referred to by DOT) and the HCS pictograms for the same hazard.” In the future, OSHA will revise Appendix C, C.2.3.3 to reflect this change in policy.

According to OSHA, manufacturers, importers or distributors who must comply with both DOT and HCS requirements have two options: (1) use only the DOT label for the hazard (which OSHA will consider to be compliant for a pictogram) or (2) use both the DOT label and the HCS pictogram for the hazard. However, for hazards that do not require a DOT label, there must be a HCS pictogram to be compliant with the hazard communication standard requirements.

On September 19, 2016, OSHA and the DOT issued a joint memorandum addressing labeling of hazardous chemicals for bulk shipments. The memorandum clarified that “during transportation DOT’s HMR [Hazardous Materials Regulation] governs hazard communication labeling requirements” and “OSHA’s HCS 2012 labeling is not required on shipping containers in transport, even when DOT’s HMR does not require labeling in transportation.” However, labeling under OSHA’s HCS is required for hazardous chemicals “both before and after transportation.”

The memorandum makes clear that labels on bulk shipments that conform to OSHA’s HCS standard are not in violation of DOT’s HMR. “In other words, an HCS 2012-compliant OSHA label and a DOT HMR label or marking may both appear on the same package.”  If bulk packages contain labels with pictograms or symbols that are not in conformance with OSHA’s HCS requirements then such labeling is prohibited by the HMR.


Lawsuit Filed Against OSHA on Walk-Arounds

The Occupational Safety and Health Administration overstepped its authority in expanding union representation at “walk-arounds” in non-union workplaces, the National Federation of Independent Business has alleged in a lawsuit against the agency filed in Texas. Nat’l Fed’n of Indep. Bus. v. Dougherty, No. 3:16-cv-02568 (N.D. Tex. Sept. 8, 2016). To read the full article, written by Carla Gunnin, click here.