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the incentive program. Inaccurate reporting will, of course, skew the injury/illness data now being collect- ed electronically by OSHA from many employers, and was the basis for addressing incentive programs, disci- pline and drug testing in the final rule. According to the revised policy, which supersedes previous policy on the topic, OSHA will look at rate- based programs to determine whether it includes el- ements such as: • Rewards for employees who identify unsafe condi- tions in the workplace;
• Training for workers to reinforce Section 11(c) and Part 1904 reporting rights and responsibilities and emphasizes the employer’s non-retaliation policy; and
• A mechanism for accurately evaluating employees’ willingness to report injuries and illnesses. With respect to post-injury drug testing programs, the memorandum clarifies that Part 1904 does not affect random testing, drug testing unrelated to the re- porting of a work-related injury/illness, testing under a state worker’s compensation law requirement or test- ing pursuant to a federal law requirement (e.g., DOT testing of commercial drivers).
For post-incident testing that is done “to evaluate the root cause of a workplace incident that harmed or could have harmed employees,” testing of the injured worker can legally be performed as long as the em- ployer also tests “all employees whose conduct could have contributed to the incident, not just employees who reported injuries.” This still leaves open the ques- tion of drug testing a worker who reports an injury such as a hernia or reports an illness following a medi- cal exam (such as hearing loss), where there is no real “incident” to investigate or anyone to test other than the worker reporting the OSHA recordable condition. Under the original OSHA interpretation of its 2016 rule, it was viewed as a violation to drug test a worker solely because he/she was injured, unless the employ-
AUTOMOTIVE RECYCLING • January-February 2019
er could articulate a reason why (in advance of the testing results) it was believed that the worker’s impair- ment was a causal factor in the incident. This obviously put a heavier burden on the employer to do a quick “root cause analysis” in order to determine causation and suspicion of impairment and then decide on test- ing, all within the short timeframe when a drug or al- cohol test could still be effective.
Legal Look
From a legal perspective, the 2016 final rule’s pre- amble discussion of how the rule applies to actions taken under workplace safety incentive programs, discipline and drug testing programs is likely to carry more weight than the new policy when the first cases get litigated arising from the enhanced whistleblower protections in Part 1904. The issue may also be tested first via an employee complaint under Section 11(c) of the OSH Act. The 2016 rule’s preamble relates back to a now- superseded 2012 memo that clarified the agency’s view that the act of reporting an injury or illness was a protected activity under Section 11(c) of the Occupa- tional Safety & Health Act of 1970 (OSH Act), and that certain safety incentive programs based on going a pe- riod of time without a recordable injury, and denying an injured worker a benefit as a result of the injury/ illness, would be viewed as a Section 11(c) violation. The 2012 policy resulted from a 2009-2011 Record- keeping National Emphasis Program that found over 50 percent of employers were underreporting injuries on their OSHA logs, and that employees were dissuad- ed from reporting injuries or illnesses if they would lose an incentive prize, or if they feared discipline or drug testing. The big question is whether courts will give more weight to the 2012 policy and the 2016 final rule preamble that supports the 2012 interpretation, or the 2018 policy that contradicts both of the earlier positions, in future litigation.
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