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Mugno would face full docket

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The next head of the U.S. Occupational Safety and Health Administration will have to confront critical priorities for the agency, including how to interpret the anti-retaliation provisions of the its electronic record-keeping rule.

The Improve Tracking of Workplace Injuries and Illnesses rule requires certain employers to submit electronically injury and illness data they already are required to record via their on-site OSHA injury and illness forms. Employers subject to the rule received a two-week reprieve last month when OSHA extended the reporting deadline to Dec. 15.

The new head of OSHA will have to determine how to implement and enforce the regulation’s anti-retaliation provisions, including potentially reconsidering the regulation’s wording on employee incentive programs. Incentive programs have been the subject of some of the handful of citations issued under the anti-retaliation provisions to date. In addition, the new head could reconsider wording in the regulation’s preamble, which employers argue discourages them from mandating post-accident drug testing even in situations where such testing may be warranted and with the United States in the midst of an opioid epidemic.

“I do think we will finally, thank goodness, see a change in the interpretation of the anti-retaliation provisions and that completely unfounded, inappropriate attack on automatic post-injury drug-testing,” said Howard Mavity, an Atlanta-based partner at Fisher Phillips L.L.P. “That can be changed with a single page directive ... but that’s one of the few areas that can so easily be changed.” 

The agency is also likely to reinterpret its stance on employee incentive programs, but that will be slightly more controversial than rethinking the drug testing limitations, he said.

“You’ve got a really divided opinion among people in the industry about incentives based on injury and illness data” while the restrictions on drug testing are “just not rational at this junction in our history,” Mr. Mavity said. “Drug testing has become an accepted part of society.” 

Employers also objected to the agency’s plan to publish injury and illness data it receives via mandatory reports — language that is in the preamble and not the rule itself, noted Ann Rosenthal, associate solicitor for the division of occupational safety and health with the U.S. Department of Labor’s Office of the Solicitor in Washington, speaking at the American Bar Association’s annual Labor and Employment Law Conference in Washington last month.

“A different administration may well be amenable to different arguments,” she said.