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The Trump administration has proposed enshrining the U.S. Occupational Safety and Health Administration’s current stance that the electronic record-keeping rule does not prohibit employers from establishing workplace safety incentive programs or post-incident drug testing in a new standard, according to the latest Unified Agenda of Regulatory and Deregulatory Actions.
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, which 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. 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, established during the Obama administration.
But in October 2018, the agency issued a memorandum to its regional administrators, which said OSHA “believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates.”
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.
A drug testing program and safety incentives rule was one of six items placed on a long-term actions list for OSHA, meaning the agency did not expect to have a regulatory action within the 12 months after publication of the agenda. A notice of proposed rule-making for such a regulation would be released in September 2020, according to the Unified Agenda.
Regulations involving musculoskeletal disorders injury and illness recording and reporting requirements, infectious diseases, process safety management and prevention of major chemical accidents, shipyard fall protection and personal protective equipment in construction were also on the long-term actions list.
Meanwhile, the updated Unified Agenda lists 20 regulatory actions in the prerule, proposed rule and final rule stages for OSHA.
Regulations related to communication tower safety, emergency response, a mechanical power press update, powered industrial trucks, a lockout/tagout update, tree care, prevention of workplace violence in health care and social assistance, blood lead level for medical removal and revisions to the silica standard’s Table 1 for the construction sector are all listed in the prerule stage. The agency appears to be moving forward with two of the most high-profile regulations on this list, scheduling mandatory reviews of the impact such rules have on small businesses to begin in May for the potential emergency response standard and October for the workplace violence in health care and social assistance.
The Occupational Safety and Health Review Commission recently sent clear signals that OSHA should adopt standards to address heat stress risks and workplace violence in the health care and social services sector rather than relying on the general duty clause in the Occupational Safety and Health Act to cite employers. Bills have been introduced to direct OSHA to implement a workplace violence standard for the industry, whose employees are disproportionately vulnerable to such violence.
In the proposed rule stage are amendments to the cranes and derricks in construction standard, an expansion of exemptions to the crane and derricks standard for railroad roadway work, an update to the hazard communication standard, a Puerto Rico state plan, and welding in construction confined spaces, according to the Unified Agenda.
On the final rule list are the standards improvement project IV, quantitative fit testing protocol, rules of agency practice and procedure concerning OSHA access to employee medical records, technical corrections to 35 OSHA standards and regulation, a notice of proposed rule-making on the beryllium rule’s general industry provisions, and occupational exposure to beryllium and beryllium compounds in the construction and shipyard sectors.
A federal agency's strong stance against using incentives in workplace safety programs has baffled advocates, although some say employee incentives can be crafted to avoid violating safety rules while increasing their effectiveness.