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Court Ruling on OSHA’s Discriminatory Practices – Update

Court Ruling on OSHA’s Discriminatory Practices – Update
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A federal Judge denied a request for injunctive relief to prevent the new OSHA’s Anti-retaliation rules from taking effect. These highly controversial rules prohibit employers from:

  • Conducting blanket, post-injury drug testing
  • Implementing safety incentive programs that include the criteria of not having an injury
  • Disciplining employees for late reporting certain injuries
  • Disciplining employees for safety violations in cases where an injury has occurred

OSHA believes the above practices violate an employee’s right to report an injury by discouraging the employee from reporting the incident to their employer. Many employer groups, insurers, and safety professionals objected to these provisions for obvious reasons.

During his campaign, President-elect Trump spoke about rolling back onerous regulatory burdens on employers. A new administration and OSHA administrator, once installed, may move quickly to eliminate these provisions that were included in the new Electronic Recordkeeping Standard published earlier this year. A lame duck OSHA may stall aggressive enforcement of these provisions until a new agency leadership team is installed. There is no guarantee you won’t be inspected and cited, but these provisions are widely unpopular and contrary to many existing and effective safety and risk management programs.

However, employers may consider changing or “tweaking” existing programs until it is known how the new administration will respond.

Considerations should include:

  • Eliminating blanket post-injury drug and alcohol testing with reasonable suspicion testing. Document some reason why an injured employee should be tested.
  • Change the criteria for safety incentive programs from not having injuries to a reduction in the number of unsafe behaviors and conditions observed
  • Discipline employees for late reporting injuries when it is obvious the employee knew, or should have known, of their injury
  • Discipline employees for safety violations that do NOT result in injury as or more frequent than those situations in which an employee is injured

As with many government regulations, some of the concepts were sound, but the execution was very poor. Even though I believe the risk of inspection and citations for violations of these provisions is very low until a new administration is able to sort things out, it would be wise to make small changes to existing programs to improve the chances of surviving an inspection. Please feel free to contact me should you have any questions.

Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.

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