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.
OBAMA ERA RULES: In May 2016, OSHA published 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:

1. Employer must have a reasonable procedure to report accidents
2. Employer must not retaliate against employees reporting accidents
3. Limitation on disciplining employees filing injury claims (See Our 2013 Newsletter on this issue)
4. Limitation on drug testing following an accident
5. 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 employers may wish 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 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 program with instructions to employees as follows:

• Employee must 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 with 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 from workplace accidents, and reminding employees that the employer has a non-retaliatory policy.

DRUG TESTING GUIDANCE FROM OSHA: The new rules on post-accident 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.
EMPLOYER DRUG TESTING POLICY: Many states have legalized marijuana for medicinal and recreational drug. On a federal level marijuana 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 approved medication 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 use policies with the help of legal counsel to keep them compliant. Also, such policies should be communicated to employees through discussion forums at the workplace rather than just a page in the employee handbook. Employers maintaining drug free workplace have consistently shown better safety records than those who have lax drug enforcement policy.

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 requirements, 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 Form 300A 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 recordkeeping regulation by rescinding the requirement 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 from their Form 300A (Summary of Work-Related Injuries and Illnesses) covering the previous calendar 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 regulations and must conform to reporting.

Employers with 20 to 249 employees in the specific industries listed in Appendix H of the emergency 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 on a data gathering mission may contact the dealership for injury data. Dealers may then comply with such request on a case by case basis.

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 inspection during the visit and upon informed consent 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. The employee was hospitalized triggering a report to OSHA under federal regulations. OSHA inspected the facility and was granted access by the employer to look at the electrical panel area. Upon request, OSHA inspectors were provided Injury Log 300 by the employer. Upon review of Log 300, OSHA filed for a search warrant to investigate other locations at the plant where the injuries as reported on the Log 300 had occurred. The search warrant was granted. Subsequently, the employer filed a motion to vacate the search warrant which was granted by the District Court. OSHA appealed the lower courts decision to the 11th Circuit Court of Appeals.
The appeals court held that logs are merely records of injuries and not proof of OSHA violations. The mere existence of injuries, the court noted in this case, does not mean that injuries were caused by OSHA violations, or justify the issuance of administrative warrant for gathering evidence of OSHA violations. Recordkeeping regulations as found in 29 CFR Part 1904 state that the recording of injuries on Log 300 does not mean that an employer is at fault or an OSHA violation has occurred. This decision serves as guidance to employers to limit OSHA inspections to the complaint area. Unless the employer consents, a judicial warrant is required under the Fourth Amendment. And if OSHA wishes expand its search under information procured during initial inspection, the employer should seek legal counsel to limit the inspection as available under the current law.
References:

1. https://www.osha.gov/recordkeeping/finalrule/interp_recordkeeping_101816.html
2. https://www.dir.ca.gov/dosh/calosha-updates/log300-reporting.html
3. USA v. Mar-Jac Poultry, Inc., No. 16-17745 (11th Cir. 2018)

DISCLAIMER: The contents of this newsletter are merely for informational purposes only and are not to be considered as legal advice. Employers must consult their lawyer for legal matters and EPA/OSHA consultants for matters related to Environmental, Health & Safety. The article was authored by Sam Celly of Celly Services, Inc. who has been helping automobile dealers comply with EPA and OSHA regulations since 1987. Sam received his BE (1984) and MS (1986) in Chemical Engineering, followed by a J.D. from Southwestern University School of Law (1997). Our newsletters can be accessed at http://www.epaoshablog.com. Your comments/questions are always welcome. Please send them to sam@cellyservices.com