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OSHA drug testing, incentive proposal may bring relief to employers

Workplace safety

The Trump administration’s proposal to enshrine its stance that employers are not prohibited from establishing workplace safety incentive programs or post-incident drug testing in a standard could reassure employers that such programs are legitimate, but much depends on the eventual language and whether the proposal moves forward despite a crowded regulatory agenda and the 2020 presidential elections, experts say.

A drug testing program and safety incentives rule was one of six items placed on a long-term actions list for the U.S. Occupational Safety and Health Administration, meaning the agency did not expect to have a regulatory action within the 12 months after publication of the latest Unified Agenda of Regulatory and Deregulatory Actions. A notice of proposed rule-making for such a regulation is scheduled to be released in September 2020, according to the Unified Agenda released last week.

“I’m not necessarily holding my breath that something is going to come to fruition,” said Taylor White, Dallas-based senior counsel for Foley & Lardner LLP who advises employers on workplace safety and other issues. “If it does, I will be interested to see what the actual language is to see if it gives more clarity than what employers have had so far.”

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.”

“The Trump administration has had a general focus on rolling back regulations from prior administrations, in particular the Obama administration, and the safety incentive and drug testing rule being part of the antiretaliation focus were big-ticket items at the end of the Obama administration,” said David Klass, of counsel with Fisher & Phillips LLP in Charlotte, North Carolina. “It seems like the Trump administration has pressed pause for the time being. I see the recent regulatory agenda putting a more permanent stop on those rules.”

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.

“I thought it was very interesting, because it looks to me like it’s consistent with the memo that they issued in October 2018 clarifying their position, now taking the position that post-accident drug testing and safety incentive programs are reasonable, that they are valuable for employers if applied consistently,” said Matthew Deffebach, Houston-based partner and head of the labor and employment practice group at law firm Haynes and Boone LLP.

Employers spent time and resources trying to plan for compliance with the antiretaliation language in the rule’s preamble before the October 2018 memo came out, which Mr. Taylor described as “a little bit of whiplash.”

“It sounds like they’re going down the path that they said they were going to in terms of enforcement in the first place,” he said.

OSHA generally inspects employer worksites based on accident reports and it would be unlikely that a drug testing or safety incentive program would be the precipitating cause of an agency inspection, Mr. Klass said.

“Even though there’s been a lot of concern, there haven’t been a lot of citations under the rule,” he said. “OSHA’s not going to inspect an employer over a drug testing or safety incentive program.”

OSHA previously amended the electronic record-keeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from OSHA forms 300 and 301, but these establishments are still required to submit information from their Form 300A summaries, including confidential business information.

“I think the criticism when they rescinded part of that rule on the uploading of the OSHA logs in January was … ‘why not rescind it more’ applying to the antiretaliation provisions as they relate to drug testing and safety incentive programs?” Mr. Deffebach said. “I think this is a signal that the administration would intend to do that. The next step is to revert back to the status quo before the rule, because right now it’s just guidance.”

But the memo was helpful for employers that did not make significant changes to their drug testing or safety incentive programs in response to the original rule, he said.

“I think they see it as really good news,” he said. “Even if not the law, it’s an indication that they’re not going to be cited by the agency if there was an investigation.”

The drug testing program and safety incentives proposed rule was the major change in the Spring 2019 Unified Agenda, but experts noted that the agency appears to be slowly moving forward with a standard for workplace violence in health care and social assistance. A mandatory review on the impact of such a rule on small businesses is scheduled to begin in October, according to the Unified Agenda.

“I’m interested to see how that one plays out,” Mr. White said. “That’s really the only one of note, because it’s very timely in light of a lot of the gun violence that has gone on in our country.”

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.

“I think that will continue to be an active issue,” Mr. Deffebach said. “Setting that deadline is just indicative of that.”







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