It is a "pretty crafty" way for OSHA to give itself the authority to cite employers who may retaliate against workers filing claims of injury or danger in the workplace.
That's how Kaiser H. Chowdhry, an associate with the Washington D.C.-based law firm Morgan Lewis, described the new "Anti-Retaliation" provision of the Electronic Recordkeeping Rule issued in May 2016 under the 1970 Occupational Safety and Health (OSH) Act.
The primary goals of the OSH Act are to reduce workplace hazards and implement safety and health programs for both employers and their employees.
Discussing OSHA trends under U.S. President Donald Trump's administration, Chowdhry explained to attendees of Houston Area Safety Council's 27th anniversary event held recently in Pasadena, Texas, that before this rule went into effect, the only way a retaliation claim could be brought under the OSH Act was if an employee himself or herself brought the claim within 30 days after the alleged retaliation.
According to OSHA, retaliation under the rule occurs if the action would deter a "reasonable employee" from reporting a work-related injury.
"If you discipline an employee for reporting an injury that doesn't have anything to do with a safety rule or the environment, maybe there is retaliation there," said Chowdhry.
OSHA has identified three specific areas in the preamble to the new rule where retaliation may occur to deter reporting. They include disciplinary policies whereby an employer disciplines an employee for reporting injuries and illnesses when no legitimate workplace safety rule has been violated; employee incentive programs that discourage workers from reporting offenses; and mandatory post-accident drug testing policies, including drug testing that does not identify impairment.
"A big one that has come up a lot in the last year from our clients is post-accident drug testing," Chowdhry observed. In the preamble to the new rule, OSHA said any blanket drug testing policy enforced after an incident or an accident occurs is, on its face, retaliatory.
"It doesn't make much sense," Chowdhry continued. "They also said that any drug testing has to test for impairment as opposed to just presence. This was a very interesting point.
"I did all the research I could do and could find no testing out there that could actually test for impairment by drugs. I even contacted someone at the Department of Labor (DOL) and talked to one of their scientists who confirmed that."
In October 2016, OSHA issued additional guidance about how the retaliation provision was going to be enforced, which pulled back some of the preamble language including requirements that identify testing impairment, "given that the technology does not currently exist," Chowdhry said.
Help wanted
While R. Alexander Acosta has been confirmed as the Trump administration's Secretary of Labor, a number of positions within the DOL remain vacant, Chowdhry said, including director of OSHA and solicitor of labor.
Nicolas Geale has been installed as deputy solicitor and acting solicitor of labor, Chowdhry said. In March 2017, Geale told attendees at Georgetown University Law Center his department "will listen to the regulated community" from the position of "a little bit more humility."
The OSHA director's appointment is not expected until 2018.
Though analysts anticipate a significant decrease in enforcement efforts under the Trump administration, actual numbers from the first six months of Trump's presidency contradict that prediction so far. About 17,500 OSHA inspections were conducted between Jan. 20 and July 20; during the same period in 2016, approximately 18,500 inspections were conducted.
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