December 1, 2016 was the date that enforcement of the new recordkeeping standard interpretations began. Without mentioning them in the rule itself, the comments accompanying the rule criticize, and attempt to outlaw: (1) mandatory post-accident drug testing; (2) employer incentive programs that provide significant financial incentives to individual employees or groups of employees to work safely and not sustain injuries; and (3) employer policies requiring the immediate reporting of injuries.
The regulation used by OSHA is entitled, “Employee Involvement,” 29 CFR Section 1904.35. The regulation itself does not mention employee safety incentive programs, mandatory post-accident drug and alcohol testing programs, or rules regarding the immediate reporting of injuries, period. It simply states that:
(a)(1) You must inform each employee of how he or she is to report a work-related injury or illness to you.
(b). . .(1)(i) You must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness. . ..
This section of the rule then concludes by requiring employers to inform employees that they have the right to report injuries, and that they cannot be discharged or discriminated against for reporting injuries. For the first time, then, an OSHA Compliance Officer can cite an employer for allegedly deterring reporting of work-related injuries and illnesses, and the employee does not have to file a complaint under 11(c) of the OSH Act for discrimination or retaliation.
Since the interpretations regarding the safety incentive programs, post-injury mandatory drug and alcohol testing, and policies regarding the immediate reporting of injuries are not explicitly mentioned in the rule itself, it would seem that OSHA could change those interpretations without notice and comment rule-making. In short, the new Administration would be able to eliminate those interpretations with the stroke of a pen.
And it should. Plant managers and construction superintendents, who must run plants and build projects, were typically trained in the older Standard-based environment, in which one followed the Standards that were written down and of which one had prior notice. Without the Standards-based environment, employers are subjected to a murky world in which they are second-guessed in the event of an injury or a decision. In this case, they are subjected to a lengthy interpretation.
Mandatory post-accident drug testing: it is difficult to see how anyone can criticize a workable mandatory post-accident drug testing program. Contrary to OSHA’s assertions, whenever there is a claimed injury or illness, that injury or illness is an occasion to look at the conduct of the employee, including whether the employee is using illegal drugs. Administering a program that requires in-depth training on the symptoms of drug use is very difficult even when a trained safety or human resources official is making the decision whether to test the employee, much less the front line supervisor on an off shift.
Employee safety incentive programs awarding money: these programs have been used by employers for many years very ethically and very successfully to increase employee awareness of safety on a day-to-day basis. As the days wear on, complacency occurs in human beings. Programs such as safety incentive programs raise the consciousness and conscientiousness of all concerned, including the front line management. All then work together toward a common goal. I do not find in my experience suppression of reporting of injuries from such programs, but I have seen wonderful and remarkable results from them. No employer wants an injury to go unreported only to show up later as a much-worse condition. Employers do not need a law to permit them to have safety incentive programs that provide remuneration to individual employees or groups of employees for remaining injury-free. Under the guise of “employee involvement,” without having the openness to mention these programs in the regulation, OSHA, in its interpretation, prohibits them throughout the land.
Policies requiring the immediate reporting of injuries: those programs that have been successful for decades in sifting out cases that are actually work-related from those due to chronic conditions that are not work-related, or worse, that are fraudulently claimed. Common sense and human experience show us that in the vast majority of the cases, the individual will know whether he or she has sustained an injury immediately. Therefore, we require immediate reporting so that the individual can receive immediate attention and medical assistance, and documentation of the incident can occur, so that a sound decision can be made on the workers’ compensation claim. Once again, employers need no law to permit them to require the immediate reporting of injuries. Under the guise of “employee involvement,” OSHA now essentially tries to outlaw those policies throughout the land, without even mentioning them in the Standard.
The interpretation of the Standard propounded by OSHA will hamper management rights to run the workplace and run the plant or construction site. None of those three policies should be considered unlawful or unethical by the U.S. Government. OSHA should eliminate those interpretations now.
Bill Wahoff’s primary focus is health and safety law, including OSHA on a national basis, workers’ compensation, Ohio VSSR, and intentional tort litigation defense. He has vigorously represented employers at several thousand administrative hearings, in numerous court cases, including jury trials, and mandamus actions.