You’ve heard the expression “click-bait,” haven’t you? You know: the practice of saying something provocative in a headline to get attention and encourage you to click on the link? For instance, Chicken Little shouting “The sky is falling!” is a lot more interesting than saying, “An acorn hit me on the head as I was walking in the woods, I jumped to the wrong conclusion, and now I look like an idiot.”
So what does click-bait have to do with OSHA? Well, OSHA recently released a memorandum “clarifying” its position with respect to safety incentive programs and post-accident drug testing. Once the memo was released, those of us who blog about these things for a living went crazy, claiming that it’s somehow a new dawn, and that OSHA has completely reversed itself on these practices.
With all due respect to Shakespeare and to my fellow members of the blogosphere, this reaction seems a bit like much ado about nothing.
In 2016, the Occupational Safety and Health Administration (OSHA) released final regulations regarding electronic recordkeeping requirements that contained a provision prohibiting employers from engaging in practices that could have the effect of discouraging employees from reporting workplace safety concerns.
In the preamble to the regulations, OSHA provided examples of two types of common employer practices that could discourage reporting:
For more details, check out our previous articles on post-accident drug testing and safety incentive programs.
With a new administration comes new people in power at the various regulatory agencies. The employer community had raised a great hue and cry about the language in the preamble, fearing that it would somehow destroy all of their well-intentioned safety practices (this, too, was an overreaction). In response, the current decision makers at OSHA issued a Memo to its Regional Administrators clarifying how it wants them to apply the standards when conducting compliance investigations. It is this memo that has sent the blogosphere into conniptions.
Perhaps it’s both a big deal and not a big deal at the same time. On the not-a-big-deal side of the equation, the federal regulations are still in place and remain unchanged. The preamble didn’t prohibit safety incentives or post-accident drug testing. Instead, they just placed some boundaries around them.
For instance, the preamble says that post-accident drug testing is permissible, so long as the nature of the accident is such that it would have been more likely to occur if the employee had been under the influence. As an example, you wouldn’t be able to test an employee who is hit by a falling ceiling tile, but you could test an employee who doesn’t go through proper lock-out/tag-out procedures before reaching into a machine to dislodge a jam. The preamble’s requirements prevent employers from automatically testing after every workplace accident, which had previously been a common practice among employers.
The only “new” thing the memo says is that the following kind of post-accident drug testing is permissible:
Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
In other words, automatically testing after any incident is still not okay.
On the big-deal side of the equation, the memo seems to be a clear statement by the current OSHA administration that they will cast a kinder eye on both safety incentive and post-accident drug testing programs than the previous administration. In other words, the regulations are still in place, but OSHA will try harder to find ways to justify employer programs, meaning employers are less likely to be found non-compliant.
If you’re going to conduct post-accident drug testing, you should still have some reason to believe that drug or alcohol use could have increased the likelihood of the incident occurring. And, although I didn’t discuss it much in this article, if you’re going to offer safety incentives for clean safety records, consider accompanying them with other incentive programs that more clearly reward actual safe practices or behaviors.
And make sure to check our Events page for a session on workplace incentives and rewards in early 2019. If you’re a Hotline client, we can provide you with a document that discusses post-accident drug testing in more detail, including numerous examples of when testing wouldn’t be appropriate, along with OSHA-compliant language you can add to your drug testing policies. For more information about workplace compliance or safety issues in general, contact us.
James provides guidance to employers on a variety of topics with a focus on employment, risk management and liability issues. In addition to working directly with employers, he regularly conducts in-depth training through webinars, at client sites, and through the University of Minnesota’s Continuin
James provides guidance to employers on a variety of topics with a focus on employment, risk management and liability issues. In addition to working directly with employers, he regularly conducts in-depth training through webinars, at client sites, and through the University of Minnesota’s Continuing Ed program. He previously was a plaintiff’s attorney and brings that perspective into his advice to employers. James received his law degree from the University of Minnesota and his BA from Washington University in St. Louis.
If you could give human form to your safety culture, what would it look like?
Maybe it would be a thick-set, shirtless brute named Trog with a foul disposition beating out a drum cadence to keep your employees rowing in-sync.
Or would it be more like a fussy and constantly disapproving Dickensian paper-pusher named Fizzlewhite who has never met a rule or procedure he didn’t like, even though he hasn’t done most of the things he creates rules to address?
If you were to search the various “mommy blogs” and parenting advice websites out there, how many of them do you think would endorse the following practice?
A child’s safety should always be a top priority for any parent. When leaving children under the age of 10 alone in the house for lengthy periods of time, be sure to provide the kids with a loaded pistol with the safety off in case a stranger should happen by. In a pinch, recently sharpened knives can be substituted for the pistol.
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