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Birmingham Bar Association Bulletin

ple is a company that holds periodic prize drawings or gives out cash bonuses for team/department/individual employees who remain accident-free. Another example might be a half day off barbeque for any team going one year without a recordable accident. In such cases, when an employee is injured on the job, she may feel discouraged from reporting the injury so as not to lose the incentive or benefit for herself and/or the team. OSHA has now determined such programs to be a violation for which the employer may be held financially responsible. Instead, OSHA suggests that employers develop programs that encourage safety in the workplace and promote worker participation; e.g., providing benefits for complying with safety rules, attending safety training, succeeding on safety quizzes, identifying workplace hazards, wearing safety equipment, engaging in proper lifting techniques or participating in injury investigations. Concerning post-accident drug and alcohol testing, OSHA has determined that blanket post-injury drug testing policies may deter reporting; therefore, employers are prohibited from using drug testing, or the threat of drug testing, as a form of adverse action against employees who report. These new regulations do not prevent pre-employment, reasonable suspicion or random drug testing. OSHA is more concerned about testing that is automatically required following any work-related accident. An exception is when state law requires it, e.g., at a health care company or in a drug-free workplace. The new regulations are focused on contributing to understanding why an injury occurred or concerning workplace safety. Employers, therefore, may perform testing (1) where there is a reasonable possibility that the employee’s drug use contributed to the incident and (2) the drug test can accurately identify that the impairment was caused by the drug use. For example, OSHA reasons that it would be unreasonable to drug test an employee who is injured after being stung by a bee, is injured due to lack of guarding on a machine or tool malfunction, or suffers a repetitive strain over a long period of time.3 The rationale, apparently, is that whether or not an employee had drugs in his/her system when stung by a bee more than likely did not lead to that injury occurring so that there is no need to test for drugs in the system. Finally, employers may discipline employees for violating legitimate, specific safety rules; however, discipline for violating vague rules, like “work carefully,” is seen as a pretext for retaliating and may be in violation. WHAT ARE THE EFFECTS OF THE RULE? In the past, employees had 30 days to file a complaint under the Section 11(c) whistleblower provision. OSHA also could not act unless and until a worker filed a complaint. Under the new rule, OSHA may instigate an investigation on its own and has up to six months to issue a citation. Previously, an OSHA investigator with retaliation training would be utilized to investigate versus now, where a government investigator dealing with potentially complex personnel issues and who has no formal training in employment discrimination law may be utilized.4 In addition to reinstatement and back pay owed to the employee, there is now a penalty to be paid to OSHA (up to $12,471 for a serious violation or failure to abate, and $124,709 for willful/repeated violations).5 In the past, there would be a “reasonable cause” inquiry by a whistleblower investigator. Under the new rule, there is an automatic complaint by the Secretary of Labor once OSHA issues a citation. HOW SHOULD EMPLOYERS PREPARE FOR OSHA’S NEW RULE GOING INTO EFFECT? Employers will need to review their injury-illness reporting requirements, post-accident drug and alcohol testing protocols and safety incentive programs. Employers should document all disciplinary actions, should clearly communicate with employees and should be consistent in enforcing safety work rules. Employers will also want to proceed with caution and/or consult with counsel when taking an adverse employment action against an employee shortly after an injury or illness is reported. Again, although the rule does not prohibit drug testing, it does prohibit such testing from being used as a form of retaliation against employees who report injuries or illnesses. Certainly, these new reporting and anti retaliation rules should cause employers some concern and will require companies to look closely at, and perhaps re-evaluate and/ or re-work, their policies and procedures concerning workplace injuries and illnesses. Employers should take steps to ensure OSHA compliance so that OSHA fines and possible litigation can be avoided. G ENDNOTES 1 https://www.bakerlaw.com/alerts/osha-new-reporting requirements-and-anti-retaliation rules-for-workplace-safety-violations. 2 81 Fed. Reg. 29624. 3 http://www.laborandemploymentlawcounsel. com/2016/06/new-osha-rules-on-drug-testing retaliation-claims-and-accident-reporting/ 4 Id. 5 https://www.osha.gov/ Jennifer W. (Jennie) Pickett is a lawyer with the firm of Smith, Spires and Peddy. Birmingham Bar Bulletin/ Spring 2017 13


Birmingham Bar Association Bulletin
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