OSHA RULE AND POLICY CHANGES AFFECTING WORKERS COMPENSATION

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1 OSHA RULE AND POLICY CHANGES AFFECTING WORKERS COMPENSATION 2017 Workers Compensation Midwinter Seminar and Conference March 16, 2016 George W. Goodman, Esq. 100 S. College St., Newberg, OR

OSHA s New Record Keeping Rule Occupational Safety & Health Administration (OSHA) Agency Primarily responsible for interpreting and enforcing the Occupational Safety

2 OSHA s New Record Keeping Rule Occupational Safety & Health Administration (OSHA) Agency Primarily responsible for interpreting and enforcing the Occupational Safety and Health Act. New record keeping rule adopted by OSHA in Anti-retaliation interpretations included in the preamble to the new rule in effect as of December 1, 2016.

3 Preamble to OSHA s New Recordkeeping Rule OSHA announced that blanket post-injury drug and alcohol testing policies deter reporting of injuries and therefore have the effect of retaliating against workers who report injuries which are not causally related to the use of prohibited drugs or alcohol. OSHA advised that drug testing policies should limit postincident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test used can accurately identify impairment caused by drug use. OSHA also announced that it considers injury-free incentive programs may also deter reporting of injuries.

4 OSHA S DRUG TESTING GUIDANCE Drug testing that is designed in a way that may be perceived as having a punitive or embarrassing impact on the involved employee is likely to deter injury reporting. Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness to justify an employer requiring a drug test. OSHA Examples: 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 machine guarding or a machine or tool malfunction. QUERY: Retaliation is defined as: Revenge The action of harming a person because that person has harmed you Retaliation includes any adverse action taken against an employee for filing a complaint, or in this case, filing a report of a workplace injury. Is a drug test an adverse action? Is this a safety issue or a political issue?

EXCEPTIONS If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer's motive will not be considered retaliatory and the final rule

5 EXCEPTIONS If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer's motive will not be considered retaliatory and the final rule interpretation will not impact such testing. Commercial Drivers License Regulations. FAA mandated testing. State laws mandating testing for certain employees (Police, Firefighters, Children s Services Workers). Random drug testing and pre-employment drug testing are also not covered by the interpretation section (b)(1)(iv).

6 WORKERS COMP PROGRAMS Section 4(b)(4) of the OSH Act prohibits OSHA from superseding or affecting workers' compensation laws. 29 U.S.C. 653(b)(4). Employers may conduct post-incident drug testing pursuant to a state or federal law, including Workers Compensation Drug Free Workplace policies even if implementing such programs is voluntary.

7 GOING FORWARD Test when there is reasonable basis for concern that impairment may have contributed to an incident. Test for all violations of workplace safety rules. Test pursuant to any state or federal law which allows or mandates testing. Test pursuant to any state workers compensation law which would be affected by OSHA s policy. Consider distinguishing between test requirements for reported injuries and reported occupational diseases.

8 INJURY-FREE INCENTIVE PROGRAMS Not all Safety Incentive Programs are deemed to deter complete accident reporting. Withholding a benefit because an injury was reported is deemed to deter accident reporting. Example - cancelling incentive raffle or prize due to the reporting of an injury. NOTE: Conditioning a benefit (such as a cash award) on compliance with safety rules is permissible.

9 GOING FORWARD Do not tie incentive programs to the lack of reporting workplace injuries. OSHA may issue citations to employers who implement such programs for retaliation under its record keeping rules. Incentive programs tied to compliance with safety rules as opposed to the lack of reported injuries are acceptable.

10 Injury Reporting Requirements Employers must establish a reasonable procedure for reporting injuries. A blanket rigid prompt-reporting requirement that results in employee discipline for late reporting even when the employee could not reasonably have reported the injury or illness earlier would be considered retaliatory by OSHA, and a citation could issue.

11 Possible Additional Ramifications OSHA citations for retaliation springboarding an increase in civil claims for retaliation and/or discrimination. Decrease in the ability to defend workers compensation claims on the basis of impairment due to intoxication. Chilling effect on employers re: implementing or maintaining drug screening programs.

12 OSHA SCENARIOS The following are scenarios provided by OSHA in an October 19, 2016, Memorandum intended to clarify its position on post-accident drug and alcohol testing:

13 Scenario 1 Employer required Employee X to take a drug test after Employee X reported work-related carpal tunnel syndrome. Employer had no reasonable basis for suspecting that drug use could have contributed to the reported condition, and it had no other reasonable basis for requiring the employee to take a drug test. Rather, Employer routinely subjected all employees who reported work-related injuries to a drug test regardless of the circumstances surrounding the injury. The state workers compensation program applicable to Employer did not address drug testing, and no other state or federal law required Employer to drug test employees who sustain injuries at work.

14 OSHA Violation Section (b)(1)(iv) prohibits an employer from taking adverse action against employees simply because they report work-related injuries. Rather, employers must have a legitimate business reason for requiring a drug test, such as a reasonable suspicion that drug related impairment contributed to the injury. If drug use could not reasonably have contributed to a particular injury and the employer has no other reasonable basis for requiring a drug test, section (b)(1)(iv) prohibits the employer from drug testing employees simply because they report injuries unless the drug test is conducted pursuant to a state workers compensation law or other state or federal law. Query: Why isn t a blanket drug screening policy an other reasonable basis for requiring a drug test?

15 Scenario 2 Employer drug tests all employees who report work-related injuries consistent with a statute or rule that allows it to get a 5% reduction in its workers compensation premiums under the state s voluntary Drug-Free Workplace program. Employer drug tests Employee X when she reports a work-related injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome.

16 No OSHA Violation Drug testing conducted pursuant to a state workers compensation law, whether voluntary or mandatory, is not affected by section (b)(1)(iv). Note: OSHA s focus is on whether there is a potential for retaliatory intent to be motivating a blanket drug screening policy, not on the fact that regardless of the motivation, when such a program is in place, the agency s perceived negative impact on the completeness of its reporting rules is the same.

17 Scenario 3 Employer requires all employees who report lost-time injuries to take a drug test because the employer s private insurance carrier provides discounted rates to employers that implement such a drug-testing policy. The relevant rate discount provisions in the private policy are identical to those in the applicable state workers compensation law. Employer drug tests Employee X when she reports a lost-time injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome.

18 No OSHA Violation To maintain consistency between public and private worker s compensation coverage in the same state, OSHA will not cite employers under section (b)(1)(iv) for conducting postaccident drug testing under private party policies that mirror the applicable state workers compensation law.

19 Scenario 4 Employer requires all employees who report lost-time injuries to take a drug test regardless of whether drug use could have contributed to the injury because the drug testing requirement is included in the collective bargaining agreement at the workplace. Employer drug tests Employee X when she reports a lost-time injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome. The employer had no reasonable basis for suspecting that drug use could have contributed to her injury and had no other reasonable basis for requiring the test.

20 OSHA Violation Section (b)(1)(iv) prohibits an employer from taking adverse action against employees simply because they report work-related injuries absent a reasonable belief that drug use could have contributed to the injury or another reasonable basis for requiring a drug test. Although OSHA does not intend for section (b)(1)(iv) to supersede other state or federal programs addressing post-injury drug testing of employees, collective bargaining agreements standing alone may not supersede section (b)(1)(iv). Query: Does this mean that OSHA considers unions that have agreed through bargaining to have blanket drug screen programs in place to have colluded in retaliating against their members?

21 Thank You. George W. Goodman, Esq. Cummins, Goodman, Denley & Vickers, P.C. 100 S. College Street, Newberg, OR Tel:

Brad Hammock Jackson Lewis P.C. Washington, D.C. Region Office (703)

Brad Hammock Jackson Lewis P.C. Washington, D.C. Region Office HammockB@jacksonlewis.com (703) 483--8316 Kathryn Russo Jackson Lewis P.C. Long Island, NY Office RussoK@jacksonlewis.com (631) 247-4606 2016