COMPLYING WITH NEW EEO-1 and OSHA REQUIREMENTS
Dealers across the country will be updating their internal practices in the next month to comply with new requirements imposed under anti-discrimination and workplace safety laws.
The changes in workplace safety rules stem from a 273-page Final Rule published by the Occupational Safety and Health Administration (OSHA) on May 11, 2016. Private dealers are subject to OSHA’s juris- diction. Dealers in Nebraska are covered directly through federal OSHA, where Iowa dealers are covered through Iowa OSHA.
The new EEO-1 reporting requirements apply to dealers with 100 or more employees. OSHA Drug Testing
The Final Rule from OSHA contains “guidance” that is not covered by any specific rule change. The guidance impacts employer drug-testing policies. It does not ban employee drug testing, but cautions employers against using drug testing (or the threat of testing) as an adverse action against employees who report injuries or illnesses. In other words, “blanket” post-accident testing policies might be considered retaliatory. OSHA believes that a policy automatically requiring drug testing of any employee involved in an accident that causes personal injury and/or property damage, even where drug use is not suspected as a contributing factor, discourages employees from reporting workplace accidents. OSHA explains, “it would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of a machine guard or a machine or tool malfunction.”
Per OSHA, workplace drug testing should be limited to situations where:
• Employee drug use is likely to have contributed to the incident; and • The test can accurately identify impairment caused by drug use.
In its guidance, OSHA states that it is not requiring employers to “specifically suspect drug use before testing, but there should be a reasonable probability that drug use by the reporting employee was a con- tributing factor to the reported injury or illness in order for an employer to require drug testing.” Although Iowa OSHA has not yet adopted this guidance, Iowa OSHA provides equal or greater protection for employ- ees than federal guidelines and generally follows federal OSHA’s lead in interpreting legal requirements. OSHA addresses the potential conflict with its guidance and state law. OSHA states: “[i]f an employer conducts drug testing to comply with requirements of a state or federal law or regulation, the employer’s motive could not be retaliatory and the final rule would not prohibit such testing.” What is “required” by state law is different than what is “permitted” under state law. There is a gray area here because, under state law, a positive drug test may affect eligibility for workers’ compensation or unemployment benefits. Using OSHA’s reasoning, an employer using drug testing to determine whether an employee is disqualified under workers’ compensation and/or unemployment laws might not be acting in a retaliatory manner for purposes of OSHA.
The Final Rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster, available here for Nebraska employers:
https://www.osha.gov/publications/poster.html or here for Iowa employers:
http://www.iowaosha.gov/iowa-osha-safety-and-health-poster.
Considering OSHA’s new guidance on drug-testing, dealers should review their drug-testing policies and revise them if necessary to reduce potential liability for a retaliation claim. Dealers should ensure compli- ance with the new guidance no later than December 1, 2016, when OSHA will begin enforcement of the anti-retaliation provisions of the Final Rule.
BY BOB EVNEN & KELLY EKLER, Woods & Aitken LLC
24 | The Retailer Magazine | Nov/Dec
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