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Anti-Retaliation Rule Survives Challenge

Tuesday, December 6, 2016

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A federal judge recently rejected an industry request to further postpone the implementation of controversial anti-retaliation provisions of the Occupational Safety and Health Administration's new record keeping rule.

The Improve Tracking of Workplace Injuries and Illnesses Rule was originally set to go into effect Aug. 10, but was delayed until November, then again pushed back to Dec. 1, amid legal challenges from employers and organizations, including the Associated Builders and Contractors and the National Association of Manufacturers.

© / Ksene

Groups that challenged the rule’s anti-retaliation provisions argued the measures would likely impact an employer’s ability to operate and maintain a safe construction jobsite.

The suit against OSHA, which centers around several controversial provisions, including one barring some post-accident drug-testing, will go on, and the federal judge’s refusal to issue a preliminary injunction does not mean the rule will necessarily withstand the challenge. It does, however, mean that OSHA may begin enforcing the rule as planned, unless and until the court rules against it in the suit.

Judge Sam Lindsay issued his ruling on the preliminary injunction request Nov. 28.

Injury Reporting, Retaliation Rules

The new rule has two main parts: an electronic recordkeeping and reporting requirement for one-the-job injuries and illnesses, and a set of anti-retaliation requirements. While the anti-retaliation aspect will be enforced starting today, the electronic reporting requirement goes into effect on Jan. 1, 2017.

The anti-retaliation provisions seek to protect employees from actions that could be taken by an employer in retaliation for reporting an injury or illness. But some employers have argued that the rules go too far, and in some cases are unenforceable.

Under the new rule, for example, an employer is prohibited from administering a drug test to an employee after a workplace incident, unless “drug use is likely to have contributed to the incident,” and only if “the drug test can accurately identify impairment caused by drug use.” The aim is to ensure that employees don’t keep quiet about a workplace injury for fear of being subject to a drug test.

computer keyboard
© / BrianAJackson

The rule's electronic reporting requirement goes into effect on Jan. 1, 2017.

But, as legal experts have pointed out, most tests cannot determine impairment at the time of the incident, only how much of a drug is in the individual’s system at the time of the test. And there’s no strict definition of when drug use is “likely to have contributed” to an incident.

Industry groups have argued that OSHA is wrong to want to prevent drug testing after workplace incidents, when drug testing can be an important tool in analyzing what went wrong.

Other aspects of the anti-retaliation provisions include banning practices like rewards (such as pizza parties) when a workplace goes a given period of time without a reported injury, because such practices could discourage employees from reporting incidents.

'Irreparable Harm'

While the plaintiffs in the suit, filed in the U.S. District Court for the Northern District of Texas, sought to delay the enforcement of the rule until the court could come to a decision on its legality, Judge Lindsay ruled that they did not show that they would suffer “irreparable harm” if the rule was enforced in the interim.

"Potential future injury based on unfounded fear and speculation … is insufficient to establish a substantial threat that irreparable harm will occur if a preliminary injunction is not granted," Lindsay said in his ruling.

Analysts note that Judge Lindsay, in his ruling, did not suggest that the plaintiffs lack a case, simply that they could not meet the burden of proof necessary to put an immediate stop to enforcement.


Tagged categories: Good Technical Practice; Government; Health and safety; Laws and litigation; OSHA; Safety

Comment from Catherine Brooks of Eco-Strip, (12/6/2016, 10:42 AM)

This clause is a tricky one: "Other aspects of the anti-retaliation provisions include banning practices like rewards (such as pizza parties) when a workplace goes a given period of time without a reported injury, because such practices could discourage employees from reporting incidents." I've worked at many companies who DO give awards for 0 accidents. The excellent safety records lower or maintain companies' insurance rates. Thus, Management has a strong incentive beyond employee safety. Any ideas about how to enforce safety rules but support reporting of violations?

Comment from M. Halliwell, (12/6/2016, 2:25 PM)

Catch them at the near miss / hazard stage, rather than once they become an incident. My firm does that...we actively encourage the reporting of hazards and near misses in hopes that we can correct things before there is an incident, accident or injury. Granted, we don't do a lot of incentivizing for zero accident / injury stuff, but I'm sure something could be worked out between the two items to make a more workable system. I know a lot of behavior based safety programs do on-the-spot rewards for working safe....and that sometimes works too. Just some thoughts / ideas.

Comment from Tom Schwerdt, (12/7/2016, 8:15 AM)

Actively reward reporting/correcting hazards before an incident occurs. Find a hazard? Get $50.

Comment from Jesse Melton, (12/8/2016, 10:02 AM)

Legislation to regulate behavior by interrupting or redirecting the thought process is always really risky. The model created to anticipate decisions in a given scenario assumes a logical internal argument actually occurs prior to engaging in undesirable behaviors. That never happens. People are insane. All of them.

At its base, a digital system (all flowcharts are digital) the maximum number of outcomes at any element in a decision point is two (2)*. In an analog system (people are analog unless dead) the number of potential outcomes is unlimited. That's before you consider the behavior of dependence/addiction, strong emotions and clinical issues and their therapies.

In this example, the decision logic is created in a closed loop, completely detached from the logic (or lack of) in those targeted by the rules. Nobody mentally sits down to contemplate the potential of an unfavorable outcome as a result of the line of coke they've railed out on the hood of their car at lunch. The baby at home that hasn't slept in 13 days is more than sufficient justification for riding the scaffold lift instead of taking the stairs. Those things are logical. "I hate the way gravel smells after my the neighbor wears that green hat on pizza Tuesday" is closer to reality but you can't have a "decision rhombus" in a flowchart.

The end result is always a weird, juvenile behavior model that's the only way attempts to simplify normal, squishy human thinking so it'll fit in a decision block. I find it astonishingly shortsighted that we have ever allowed essentially random people to dictate what defines the values we use to weight the appropriateness of behaviors in the environments they'll never even see, much less hope to understand. If, as a society, we're going to continue with this sort of thing I think it's worth revisiting WWII era behavioral modeling concepts like the odd man hypothesis, one-time random factor matrices and magic 8-ball thought process development. It's simply unsafe to base safety decisions on logic and structured thinking when the motive force that actually drives everything is somewhere between beers 13 and 15 and a bouncy castle filled with helium and cutlery.

*More than two potential outcomes is often indicative of a problem in the system design, but not always. In human behavior the arguments about including the decision to not decide is how you start a bar fight at the local statistician hangout.

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