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OSHA UPDATE
SAFETY O
OSHA issues a revised policy on safety incentive & drug testing programs that all auto recyclers should be aware. By Adele L. Abrams, Esq., CMSP
The new policy represents a major shift from the perspective outlined for enforcement at the time the final rule was issued, which was under President Obama’s administration in May 2016.
The new 2018 Standard Interpretation Memoran- dum was issued by OSHA’s Acting Director of Enforce- ment Programs Kim Stille, and is directed at Regional Administrators and State Designees, rather than being guidance issued to the general public. However, the policy will likely be utilized by OSHA state-plan states as well when enforcing their comparable provisions on whistleblower protections, although they do have authority to have more stringent requirements than federal OSHA and will be free to ignore the federal policy. Therefore, it’s critical to remember that pro- grams that will now be permitted under the new fed- eral OSHA enforcement policy may still be illegal in some of the 22 state-plan states or territories. The October 2018 memorandum clarifies that new standard 29 CFR 1904.25(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing. It takes the revised position that many safety incentive programs are implemented by em- ployers, or post-incident drug testing is done by em- ployers, “to promote workplace safety and health.” It clarifies that “evidence that the employer consistently enforces legitimate work rules (whether or not an in- jury or illness is reported) would demonstrate that the
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n October 11, 2018, OSHA issued a memorandum clarifying the agency’s position on how the new Electronic Recordkeeping rule (which amended 29 CFR Part 1904 and added new anti-retaliation provisions to protect workers who report an injury or illness) relates to workplace safety incentive programs and to post-injury/illness drug testing of the worker reporting the condition.
employer is serious about creating a culture of safety, not just the appearance of reducing rates.” The memorandum clarifies that action taken under a safety incentive program or post-incident drug test- ing program would only constitute a violation “if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”
Incentives & Testing
While the agency memorandum does promote pro- active incentive programs, where rewards are based on reporting of near-misses or hazards, involvement in a safety and health management system (and the 2012 policy added other options such as having a par- ty at the completion of training, or contests for safe- ty slogans), it now re-legitimizes rate-based incentive programs “as long as they are not implemented in a manner that discourages reporting.” Therefore, no ci- tation would be issued if an employee loses a prize or bonus after reporting an injury, “as long as the employ- er has implemented adequate precautions to ensure that employees feel free to report an injury or illness.” This is clearly a subjective standard, and it raises questions as to how an inspector will react if a work- er reports losing a benefit due to injury and says that injuries will be concealed in the future as a result of
January-February 2019 • AUTOMOTIVE RECYCLING