Post-Accident Drug Testing: Legal or Illegal?

drug test result form with bottle and penIn a prior blog, we discussed OSHA’s recently enacted anti-retaliation rule which says, among other things, that employers cannot deter injury and illness reporting or retaliate against employees for such reporting. The rule itself does not expressly address drug-testing but the preamble makes clear that OSHA believes mandatory post-accident drug testing would be retaliatory.  However, OSHA further stated that mandatory post-accident drug testing to comply with the requirements of a state or federal law or regulation is permissible. Mandatory post-accident testing to receive workers’ compensation discounts is also lawful. In other words, such testing would not be retaliatory because there is a lawful and valid reason that permits or requires such testing.

In the absence of a permissible reason to perform a mandatory post-accident drug test the issue essentially becomes whether the employer had a reasonable basis for drug testing an employee who reported a work-related injury or illness after an accident.  In guidance issued on October 19, 2016, OSHA opined the “central inquiry” will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.  If not, the employee should not be drug tested.  (more…)

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(Slightly) Higher Fines for OSHA Violations Moving Forward

person writing on clipboardAs of January 13, 2017, employers will be subject to higher fines for safety and health violations but not by much – 1.01636 percent to be precise. The increase matches the annual consumer price index by the federal government as of October 2016.  The new maximum OSHA fines are:

  • Repeat, willful: $126,749
  • Serious, other-than-serious: $12,675
  • Failure to abate: $12,675 (per day beyond the abatement date)

States that operate their own Occupational and Safety and Health Plans are also required to adopt maximum penalty levels that are at least as effective as OSHA’s. (more…)

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The Rise of OSHA Whistle-Blower Cases

construction worker walking alone in vest and hardhatIn the last blog, we took a look data showing a decrease in OSHA workplace safety and health inspections in 2016.  Although this may be true for safety and health inspections, it is certainly not for whistle-blower investigations which continue to rise.  Some may not be aware that OSHA enforces and investigates claims under 22 different federal whistleblowing laws including, among others, Section 11(c) of the OSH Act, the Safe Drinking Water Act, Sarbanes-Oxley, the Surface Transportation Assistance Act and the Consumer Financial Protection Act of 2010.

OSHA continues to be very active in whistle-blowing prosecution including anti-retaliation cases.  Some of these activities include the following press releases:

  • January 14, 2017 – OSHA issues recommended practices to promote workplace anti-retaliation programs
  • December 14, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints from workers in the automotive industry
  • October 12, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints under the Affordable Care Act
  • September 16, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints under the Seaman’s Protection Act
  • September 15, 2016 – OSHA issues new guidance in settlement approval in whistleblower cases
  • August 16, 2016 – OSHA pilots new, expedited whistleblower review process
  • April 18, 2016 – OSHA issues final rule establishing procedures for handling retaliation complaints under the Food Safety Modernization Act

OSHA’s website also shows aggressive prosecution of retaliation cases affecting many different industries.

(more…)

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A Quick Look Back at OSHA in 2016 by the Numbers

construction area inspectionThere are lot of questions about how the Trump administration will affect OSHA in the next four years including who will lead the agency.  The President has already implemented a federal hiring freeze although there are some exceptions built into the mandate. However, it is probably a safe bet to assume we probably will not see an increase in OSHA enforcement and most likely a shift from enforcement to compliance assistance as federal budgets will likely shrink. (more…)

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Welcome to the OSHA Chronicle!

Well, 2017 is upon us and one of my New Year’s resolution is to start an OSHA related blog and this is one resolution I am committed to keeping (unlike a few others that have already fell by the wayside unfortunately).

I know it may not sound like a particularly interesting subject for a blog or perhaps a bit unusual to some, but if you are reading this, I suspect you probably do not fall into either of those camps.  We are the safety and health “nerds” of the world and a group which, to be blunt, probably doesn’t get enough recognition but that’s a subject for a future blog.

To start, I wanted to share some of the reasons workplace safety is so important to me and also talk about some of my hopes and objectives in writing this blog.

Let me start with who I am.  My formal legal background can be viewed under the “About the Author” link on this blog.  For additional information about my experience, I welcome you to visit my bio on Cozen O’Connor’s website located here.

For my entire professional career I have been involved with workplace safety and health issues.  Immediately after law school, I started as a trial attorney with the United States Department of Labor where I prosecuted, among other laws, OSHA.  At DOL, I quickly grew to understand the importance of workplace safety and witnessed the tragedies that could take place when workplace safety is not a priority.  (more…)

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