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The Occupational Safety and Health Administration (OSHA) put controversial anti-retaliation provisions in its electronic record-keeping rule that some employers and their attorneys oppose. However, whether the agency's interpretation of these rules will survive the new presidential administration is unknown.
OSHA wants to prevent employers from discouraging or deterring workers from reporting workplace injuries and illnesses. The agency issued guidance explaining that certain safety incentive programs and blanket post-accident drug tests would likely deter reporting and would therefore violate the retaliation rules.
Speaking on a panel at the American Bar Association's Occupational Safety and Health Law Midwinter Meeting recently, Howard Mavity, an attorney with Fisher Phillips in Atlanta, said he's not too concerned about the limitations placed on safety incentive programs.
"Safety professionals hate these incentive programs because in some ways they are based on chance and don't alter behavior," he said, adding that a good program rewards behaviors that actually make a difference, like completion of effective training programs.
The drug-testing rules, however, are more problematic, he noted.
OSHA had said that employers should limit post-accident drug tests to situations where drug use likely contributed to the incident and for which a drug test can accurately show impairment caused by drug use.
The guidance talks about a few situations in which drug testing would likely deter reporting, said Douglas Parker, the executive director of Worksafe in Oakland, Calif. Worksafe advocates for improved health and safety laws, as well as remedies for injured workers.
"A classic example would be that employees are drug-tested whenever there's an injury," he said. "That's going to be suspect."
He said OSHA's position boils down to this: There must be a reasonable possibility that drug use was a causal factor in the incident.
[SHRM members-only toolkit: Complying with Workplace Records and Reporting Requirements]
Mavity said one problem with OSHA's position is that science hasn't meaningfully advanced in the last 30 years to measure drug impairment in the same way alcohol impairment can be measured.
Tests only show whether a drug is present in the person's body—not whether a drug has prevented the person from working safely.
Mavity noted that researchers have estimated that improved drug tests may be two years away.
Another issue with OSHA's position is that front-line supervisors may now have to be trained on how to recognize an impairment and determine whether drug use may have contributed to an accident, he said. "That's a nightmare."
The Rule's Fate
Enforcement of the anti-retaliation provisions began on Dec. 1 after an unsuccessful attempt by business groups to obtain a preliminary injunction that would have temporarily delayed enforcement.
Lawsuits challenging the rules are still pending in Texas and Oklahoma.
For now, OSHA's position is the law of the land, Mavity said.
He doesn't see the restrictions on drug testing surviving the challenges, though. The regulation itself simply prohibits employers from having procedures in place that discourage workers from reporting injuries and illnesses. The rest is just the agency's interpretation, he said.
He noted, however, that many employers have already decided to change their policies to comply with OSHA's interpretation.
Ann Rosenthal, associate solicitor for occupational safety and health in Washington, D.C., said she has no idea if the rule will survive. OSHA has over 40 open investigations into possible violations of the anti-retaliation provisions.
"None of those investigations have been concluded so there are no results yet," she said, although she noted that she suspects some violations will be found.
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