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OSHA Further Delays Anti-Retaliation Measures

Monday, October 24, 2016

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Employers will get yet another reprieve on anti-retaliation provisions of the Occupational Safety and Health Administration’s controversial “Improve Tracking of Workplace Injuries and Illnesses Rule.”

Originally set for enforcement Aug. 10, and later delayed until Nov. 10, the provisions which, in part, prohibit employers from using drug testing or the threat of drug testing as a form of retaliation, have been delayed a second time.

The anti-retaliation measures are now to go into effect Dec. 1, OSHA has announced.

injury report
© / s-c-s

OSHA has once again delayed implementation of anti-retaliation provisions of its "Improve Tracking of Workplace Injuries and Illnesses Rule."

However, the reporting provisions of the rule, which require employers to make all injury and illness data public, are still to take effect Jan. 1, 2017.

Legal Challenge

The delays follow a federal lawsuit, filed by the Associated Builders and Contractors, the National Association of Manufacturers and other groups, challenging the provisions and seeking to enjoin the rule’s implementation.

OSHA says the second delay was issued at the request of the U.S. District Court for the Northern District of Texas to allow additional time to consider the motion challenging the rule. The previous delay was issued to “allow time for outreach to the regulated community,” OSHA said.

“Under the rule, employers are required to inform workers of their right to report work-related injuries and illnesses without fear of retaliation; implement procedures for reporting injuries and illnesses that are reasonable and do not deter workers from reporting; and incorporate the existing statutory prohibition on retaliating against workers for reporting injuries and illnesses,” according to OSHA.

Drug Testing at Issue

One of the main challenges to the rule is that it includes language that restricts some forms of post-accident drug testing.

“The final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses,” according to OSHA.

“To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

© / Ksene

Groups challenging the rule’s anti-retaliation provisions say the measures will likely impact an employer’s ability to operate and maintain a safe construction jobsite.

The language has raised questions as to the types of situations where post-incident drug tests would be unreasonable, as well as how to test for “impairment,” as most current testing methods are unable to test for impairment by alcohol, marijuana and other drugs but rather indicate whether levels are present in the employee’s system at the time of testing, according to an analysis by The National Law Review.

Further, those groups challenging the rule’s anti-retaliation provisions say the measures will likely impact an employer’s ability to operate and maintain a safe construction jobsite.

“[I]t’s inconceivable to those of us who study how to improve safety performance that OSHA would want to limit drug and alcohol testing as part of the investigation after an accident or near-miss incident,” said Greg Sizemore, ABC vice president of Health, Safety, Environment and Workforce Development.

“Root cause analysis is key to developing procedures that prevent future incidents, so we need to know whether drugs or alcohol were a factor.”

Incentive Programs

The groups also take issue with the agency’s “attempt to restrict or eliminate programs that recognize workers for helping to establish a high-performance safety culture,” Sizemore said.

While the rule does not prohibit incentive programs, OSHA believes programs, such as bonuses or drawings for prizes offered in an effort to encourage workplace safety, result in the significant underreporting of recordable injuries and could be viewed as an act of retaliation.  

“Incentive programs should encourage safe work practices and promote worker participation in safety-related activities,” the agency wrote on its FAQ website.


Tagged categories: Accidents; Construction; Good Technical Practice; Health and safety; Jobs; Managers; OSHA; Regulations; Safety; Workers

Comment from Jesse Melton, (10/24/2016, 9:37 PM)

If "those who study how to improve safety performance" keep harping on drug and alcohol testing the only people who have drugs and booze are in management. That doesn't seem fair.

Comment from Jesse Melton, (10/25/2016, 7:47 AM)

In more serious commentary, root cause analysis delivers little useful information if you have a list of potential causes you're using as a reference. It delivers even less useful information once you put an unmeasurable variable (level of impairment) into the analysis. When that unmeasurable variable is something publicly demonized any hope of root cause identification is lost. I'm not saying drugs and alcohol don't sometimes play a role in accidents, but if you've already got a checklist with those things on it you aren't actually looking for root cause, you're looking for root funding. Drs and nurses long ago sank the entire field of healthcare diagnostics with statistical models that stop the diagnostic process the moment someone says they're a smoker or heavy drinker. If you've got enough money or weight to throw around you might get an unbiased perspective on your health, but it'll be too late by the time the actual issue is found (Luke Kelly). Sadly, it's not really even beneficial for healthcare providers to utilize those models. They just want to keep their encounter numbers up. Some NPO/insurance lobbyists certainly can't do better when it's actually beneficial to them to ID drugs and alcohol as the problem.

Comment from M. Halliwell, (10/26/2016, 11:25 AM)

Jesse, you bring up some really big points about any sort of investigation. If you go in with a checklist, chances are you'll find something on the list to mark the box on. If you go in with bias, same thing. It takes a special kind of investigator to try to find out what happened (i.e. a root cause analysis) without overdoing it, under-doing it or being biased to a conclusion. My experimental design course back in university highlighted it...I tried to prove something I knew very well and was well documented, but I didn't have enough data for the stats to show it. Admitting it and not being biased by what I knew was probably the hardest thing to do...and I'm sure each accident investigator faces the same sort of struggle.

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