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Friday, October 19, 2018

OSHA Softens on Post-Incident Drug Testing


In May 2016, the Occupational Safety and Health Administration amended 29 CFR §1904.35 to prohibit employers from retaliating against employees for reporting work-related injuries or illnesses. This revision to the recordkeeping regulations became immediately controversial when OSHA interpreted it to limit employers’ use of safety incentive policies and post-incident drug testing. On October 11 OSHA issued a Memorandum to Regional Administrators, which the Agency represents is a clarification of its position on safety incentive policies and post-incident drug testing.

Safety Incentive Policies

OSHA’s May 2016 amendment made it clear that employee safety incentive policies premised on OSHA-recordable cases were suspect because they could have the effect, whether intended or not, of discouraging or deterring employees from reporting work-related injuries or illnesses. OSHA acknowledged at the time that such policies could be well-intended efforts by employers to encourage employees to work safely but stated that there were better ways to accomplish that goal. Rather than tying safety incentives to recordable cases, OSHA suggested rewarding employees who participate in safety-related activities, such as identifying hazards or participating in accident investigations.

In the new Memorandum, OSHA again acknowledges that such policies may be motivated by an employer’s good faith intent to promote safety and health. OSHA emphasizes that rewarding employees for their participation in these types of proactive safety efforts will not violate § 1904.35(b)(1). According to the Memorandum, a safety incentive policy premised on OSHA recordables is not by itself prohibited. Rather, such policies will be considered violations only if they penalize employees for reporting work-related injuries or illnesses, or are implemented in a way that discourages reporting.

Post-Incident Drug Testing

When OSHA amended § 1904.35 in May 2016, some employers had mistakenly believed that the Agency intended to prohibit post-accident drug testing. Although OSHA’s initial guidance raised doubts about what type of drug testing would be permissible, it became clear that OSHA never intended to prohibit post-accident or random drug testing. 

To clarify its position, OSHA lists the following permissible drug testing:
  • Random drug testing.
  •  Drug testing unrelated to the reporting of a work-related injury or illness.
  • Drug testing under a state workers’ compensation law.
  • Drug testing under other federal law, such as U.S. Department of Transportation regulations.
  • Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees.  If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.

However, in the OSHA guidance issued on October 19 to the general public, OSHA included this warning: “drug testing an employee whose injury could not possibly have been caused by drug use would likely violate section 1904.35(b)(1)(iv). For example, drug testing an employee for reporting a repetitive strain injury would likely not be objectively reasonable because drug use could not have contributed to the injury. And, section 1904.35(b)(1)(iv) prohibits employers from administering a drug test in an unnecessarily punitive manner regardless of whether the employer had a reasonable basis for requiring the test.”

Common Sense Counsel:  Employers can continue to base safety incentive policies on OSHA recordables, but the rewards should be of relatively nominal value, such as pizza parties, tee shirts, or hats. Employers should avoid offering expensive gifts that an OSHA inspector would view as a “substantial” reward that would encourage employees not to report.

As to drug testing, OSHA has provided a list of permissible testing.  As a general rule, post-incident drug testing will be viewed favorably by OSHA if it either is specifically permitted by some federal or state legal requirement or provision, or if it is limited to testing individuals whose conduct could have contributed to the incident. Good time to have your policy updated to stay in OSHA compliance.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. Parts of this Column were taken from the latest Constangy Workplace Safety Practice Group client alert.

Friday, October 12, 2018

11th Circuit Limits Scope of OSHA Inspections





In the case of United States v. Mar-Jac Poultry, Inc.(link at www.alabamaatwork.com), an employee at Mar-Jac Poultry in Georgia was injured while attempting to repair an electrical panel using a non-insulated screwdriver. Because the employee was hospitalized as a result of the injury, the Company reported the case to OSHA, as it was required to do under § 1904.39. OSHA began the inspection by focusing on the accident, but then the inspectors sought to conduct a wall-to-wall inspection of the entire facility, looking well beyond the reported electrical hazard that had initially prompted the inspection. Mar-Jac consented only to the focused scope of the inspection and provided, among other documents, its OSHA 300 Logs for 2013 through 2015.

Based on the injuries and illnesses recorded on the OSHA 300 Logs, as well as the fact that Mar-Jac was included within the Regional Emphasis Program for Poultry Processing Facilities, OSHA sought and was granted a warrant to inspect the entire facility for a wide range of safety and health issues, including ergonomic, biological, and chemical hazards.  OSHA’s position at the time of this inspection was that if an inspected employer’s business was covered by a Regional Emphasis Program, the Agency was entitled to automatically expand the scope of the initial inspection to conduct a comprehensive wall-to-wall inspection looking at the categories of hazards addressed by the REP, in this case the 16 hazard categories in the Poultry Processing REP. 

Mar-Jac filed an emergency motion in Federal Court to quash the warrant, which request was granted in favor of Mar-Jac. On October 9, the U.S. Court of Appeals for the Eleventh Circuit agreed and found that the Occupational Safety and Health Administration could not expand the scope of an injury-based inspection to a wall-to-wall inspection based on the injuries and illnesses recorded on the employer’s OSHA 300 Logs.

Common Sense Counsel: OSHA cannot conduct an inspection unless an employer gives consent. If an employer does not consent, then the Fourth Amendment to the U.S. Constitution requires that OSHA seek a warrant. Probable cause is required, but a lesser showing is required in OSHA matters than in criminal matters. For OSHA inspection purposes, probable cause is established if OSHA can show either specific evidence of an existing violation or that the inspection was conducted based on “neutral criteria” contained in “reasonable legislative or administrative standards,” such as a Regional Emphasis Program.

Mar-Jac, while encouraging, was issued as an unpublished decision, meaning that it not binding on federal courts outside the Eleventh Circuit states of Alabama, Florida, and Georgia. Although the decision is too recent for OSHA to have taken a position yet, OSHA could argue that its impact is limited to cases in those three states. Employers should remember the Mar-Jac decision when OSHA attempts to expand the scope of an inspection based on the employers' inclusion in a National, Regional, or Local Emphasis Program or the fact that their OSHA 300 Logs show various injuries or illnesses. This is an important decision that all employers should have handy should OSHA attempt to expand its inspection at your particular plant location.

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP office in Opelika, AL and can be contacted at teden@constangy.com or 334-246-2901. Parts of this Column were taken from the latest Constangy Workplace Safety Practice Group client alert.