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Clear as mud: OSHA anti-retaliation guidance worries stakeholders

Clear as mud: OSHA anti-retaliation guidance worries stakeholders

The U.S. Occupational Safety and Health Administration’s new memorandum clarifying its enforcement stance on the anti-retaliation provisions of its electronic record-keeping rule muddied the waters for many experts, who expressed concern that the agency is implementing policy through guidance rather than engaging in a formal rule-making process and could change its enforcement policy again.

OSHA’s Improve Tracking of Workplace Injuries and Illnesses regulation, otherwise known as the electronic record-keeping rule, was a source of consternation for employers and their representatives in large part because of the anti-retaliation provisions featured in the rule’s preamble. The regulation did not ban drug testing of employees, but prohibited employers from using drug testing or the threat of it as a form of adverse action against employees who report injuries or illnesses, according to the final rule, published in 2016.

Similarly, employers objected to OSHA’s strong stance against using incentives in workplace safety programs, which they considered a valuable tool to encourage employees to follow safety and health rules in the workforce. OSHA under the Obama administration viewed such incentives as a way to keep employees from reporting incidents.

OSHA’s recent memo clarified that the regulation does not prohibit employers from establishing workplace safety incentive programs or post-incident drug testing.

The agency “believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health,” OSHA officials said in the memorandum sent to the agency’s regional administrators on Thursday.

Action taken under a safety incentive program or post-incident drug testing policy would only violate the anti-retaliation provisions of the electronic record-keeping rule “if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health,” the memo stated.

“(OSHA) seems to be backpedaling on what the rule says (and) you can’t change a regulation by a memo,” said Margaret Seminario, director of safety and health at the AFL-CIO union in Washington, which plans to draft an official response to OSHA’s most recent action.

Employer representatives had mixed reactions to the memo, with some seeing it as the current administration’s attempt to dull the impact of the previous administration’s enforcement stance and alleviate employers concerns, while others said it changed little.

“I don’t see what all the fuss is about,” said Eric Conn, founding partner of Conn Maciel Carey LLP in Washington. “To the extent that OSHA believes that this memo should satisfy any concern that employers have about the anti-retaliation elements of the rule, that is misguided.”

Other employer representatives saw a shift in the agency’s position in the memo’s language that would benefit employers. For example, employers did not have to specifically suspect drug use before testing, but needed to demonstrate a reasonable possibility that drug use by the reporting employee contributed to the reported injury or illness for the employer to mandate the testing, according to the language in the 2016 rule. But the memo listed several permissible instances for drug testing, including drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, all employees whose conduct could have contributed to the incident should be tested, not just employees who reported injuries, according to the memo.

“That was one of the biggest things for employers to figure out how to comply with: How do I do my root cause analysis in this situation without running afoul of the rule?” said Taylor White, Dallas-based senior counsel with Foley & Lardner LLP. “What is reasonable possibility that drugs and alcohol were involved? That was a big, big struggle for employers, and this kind of makes that much easier — just drug-test everyone, alcohol-test everyone, not just the person that reported the incident, but everybody who was involved.”

David Michaels, former assistant secretary of labor for occupational safety and health and professor at the Milken Institute School of Public Health at George Washington University in Washington, said the “changing focus on incentives” stood out for him.

“No one avoids getting hurt simply to get a prize at the end of the week or a bonus at the year,” he said. “Giving out prizes or bonuses doesn’t prevent injuries. They discourage injured workers from reporting their injuries. Workers don’t need bonuses to work safely. They need safe workplaces.”

The memo “muddies the waters” for both employees and employers, said Ms. Seminario. “Now they are putting out a memo that says, maybe you could do this, maybe you could do that … it just creates more confusion. The bottom line is workers need to be able to report injuries without retaliation, feeling discouraged or fear of retaliation.”

Employer representatives agreed that employers should continue to be wary about the agency’s stance because changes implemented by formal guidance, directive or enforcement memo could easily be rescinded if a new administration comes in and takes a different position.

“That’s not the way rule-making is supposed to be done,” Mr. Conn said. “That’s not the way regulatory requirements are supposed to be established and enforced.”

“There’s no actual codified change in the rule,” Mr. White said. “It’s a very fluid situation. That’s one of the big things employers have to keep in mind.”

“This memo has a two-year shelf life if there is a change in the administration or maybe even a change in the House (of Representatives) or Senate alignment,” he continued. “But I do think employers should have some level of comfort for the next few years that they’re not going to have to face citations for otherwise legitimate post-accident drug testing and incentive programs, whereas before they were concerned that that was going to happen.”












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