Pub. 7 2018-2019 Issue 3

12 San Diego Dealer Continued on Page 13 EMPLOYER DRUG TESTING POLICY: Many states have legalized marijuana for medicinal and recreational drug. On a federal level mari- juana remains a Schedule I drug and therefore employers may still enforce legitimate drug testing and discipline employees for violating the employers’ drug policy. Recently, the US Department of Justice and Drug Enforcement Administration placed the FDA approvedmedi- cation Epidiolex in Schedule V of the Controlled Substance Act, the least restrictive schedule of CSA. Epidiolex is the first cannabis plant extract based drug that has been approved by a federal agency for lawful medical use. This approval by DOJ may be a step towards reclassifying marijuana at a later time. With changes in the legal and social acceptance of marijuana, employers must update their drug usepolicieswith the helpof legal counsel to keep them compliant. Also, such policies should be communicated to employees throughdiscussion forums at theworkplace rather than just apage in the employeehandbook. Employersmaintaining drug free workplace have consistently shown better safety records than those who have lax drug enforcement policies. RECORDING & REPORTING OF INJURIES TO OSHA Employers in states regulated by federal OSHA have been required to electronically submit certain records of occupational injuries and illnesses. The electronic submission require- ments, along with the incorporation of an existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses, were added to federal OSHA’s recording and reporting regulations found in the Code of Federal Regulations, Title 29, Part 1904. On April 30, 2018, federal OSHA posted a “trade release” requiring all affected employers to submit injury and illness data to the federal OSHA Injury Tracking Application (ITA) online portal, even if the employer was covered by a state plan that had not completed adoption of their own state rule: https://www.osha.gov/ news/newsreleases/trade/04302018. Therefore, though California had not yet adopted its own state rule, Cal/OSHA advised affected employers to comply with federal OSHA’s directive to provide Form300A data covering calendar year 2017 by July 1, 2018. On July 27, 2018, federal OSHA posted a “trade release” that it proposes to amend its record- keeping regulation by rescinding the require- ment for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 (Log of Work-Related Injuries and Illnesses) and 301 (Injury and Illness Incident Report). These establishments will continue to be required to submit information fromtheir Form300A (Summary ofWork-Related Injuries and Illnesses) covering the previous cal- endar year. For additional information and links, go to federal OSHA’s trade release: https://www. osha.gov/news/newsreleases/trade/07272018 . Employers are now required to electronically submit Form 300A data covering calendar year 2017 by December 31, 2018. These employers should follow the instructions posted at federal OSHA’s ITA website: All employers with 250 or more employees, unless specifically exempted by section 14300.2 of title 8 of the California Code of Regulations. Auto dealers with more than 250 employees are not exempt from these regula- tions and must conform to reporting. Employers with 20 to 249 employees in the spe- cific industries listed in Appendix H of the emer- gency regulations (https://www.dir.ca.gov/ dosh/doshreg/Recording-and-Reporting/ Text-of-Amended-Regulation-Revised.pdf) . Auto dealers are not covered in the reporting requirements and hence auto dealers with 20-249 employees are exempt from electronic submission requirements. NOTE: We note that some specific government agencies onadatagatheringmissionmay contact the dealership for injury data. Dealers may then complywith such request on a caseby casebasis. APPEALS COURT LIMITS OSHA’s INSPECTION AUTHORITY OSHA has limitations on inspection authority when visiting a place of employment. OSHA officers may try to expand the scope of inspec- tion during the visit and upon informed con- sent may proceed to collect evidence that can significantly increase the violations detected and related penalties. Therefore, it is critical that the employer provide OSHA access to the location that is related to the underlying cause of inspection. Such boundaries must be established during the opening conference with the OSHA officer. In a recent case, the US Court of Appeals limited the scope of inspection available to OSHA. See our Newsletter on “How to handle an OSHA Inspection”. In the case at hand, an employee was injured while repairing an electrical panel. 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.