Pub. 7 2018-2019 Issue 3

10 San Diego Dealer DEALER ALERT To: Environmental Health and Safety (EHS) Coordinator From: Sam Celly, BChE, MChE, JD, Certified Safety Professional Sub:OSHA IN THE NEWS: Obama Era Rules Trumped, & Other Reporting Requirements Date: December 1, 2018 OSHA has issued memoranda to Regional Administrators reversing course on a series of directives issued under the Obama administration. We believe these rules are employer friendly and will have an impact on how employers run their safety program and administer their drug testing policies. OBAMAERARULES: InMay 2016, OSHApublished a rule that added new and explicit provisions for employees to report injuries with a reasonable procedure and prohibiting retaliation against employee reporting injuries at the workplace. The memo to Regional Administrators in October of 2016, explained provisions in detail as follows: Employer must have a reasonable procedure to report accidents Employer must not retaliate against employees reporting accidents Limitation on disciplining employees filing injury claims (See Our 2013 Newsletter on this issue) Limitation on drug testing following an accident Limitation on Incentive plans at work to promote safety (especially cash raffles) RULE REVERSAL: On October 11, 2018, OSHA issued a memo (https:// www.osha.gov/laws-regs/standardinterpretations/2018-10-11 ) clarifying their position - they do not prohibit safety incentive programs or post-accident drug testing. Their position in these current set of rules is employer friendly and employersmaywish to enact policies that until now were suspect or may have been considered a violation of OSHA policies. INCENTIVES: Incentive programs to reward workers for reporting safety hazards and near misses have always been held legal as it encourages employee involvement in safety at the workplace. Other types of incentives where employees are provided a reward or prize (earlier considered suspect) are now considered permissible so long as they do not discourage reporting accidents. Employers providing a reward to employees for an accident free month or a specific time period would not be cited if they withheld the reward upon the occurrence of an injury so long as the employee feels free to report an accident. We recommend that employers run the cash/reward incentive programwith instructions to employees as follows: Employeemust promptly report injuries/accidents so that the underlying hazard can be corrected. Employee must report injuries promptly so treatment can begin and it does not fester for lack of treatment. Employees not reporting injuries merely to keep the reward alive will be disciplined so as to prevent such occurrence in future. OSHA recommends that inadvertent deterrent effects from cash rewards can be counterbalanced by also implementing rewards for reporting unsafe acts or conditions, introducing training programs that reinforce employee rights to treatment fromworkplace accidents, and reminding employees that the employer has a non-retaliatory policy. DRUG TESTING GUIDANCE FROMOSHA: The new rules on post-ac- cident drug testing are very clear and allow the managers to conduct drug testing following an accident. Permissible drug testing includes: • Random Drug testing • Drug testing unrelated to the reporting of work related injury or illness • Drug testing under the states’ workers’ compensation law • Drug testing under other federal laws such as US DOT rules • Drug testing to evaluate the root cause of the workplace incident that harmed or should have harmed the employees. If the employer chooses drug testing to investigate the accident, the employer should test all employees whose conduct could have contributed to the accident, not just employees who reported the injuries. Last but not least, the October 2018 OSHA memo noted that it supersedes the memo issued covering the interpretation of various elements of the labor code as issued during Obama Administration in October 2016. ObamaEra OSHA Rules Trumped OSHA In The News Continued on Page 12