OSHA Retaliation Rule Postponed Again
Implementation of a controversial new rule regarding workplace health and retaliation has again been postponed by the Occupational Safety and Health Administration.
The rescheduling affects portions of the “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.
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.
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.”
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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.”
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.