The Trump Administration's proposal to confirm their attitude that employers are not prohibited from establishing incentive programs for workplace protection or after drug drug testing in a standard could assure employers that such programs are legitimate but much depends on the possible language and whether the proposal moves forward despite a full legislative agenda and presidential election in 2020, experts say.
A drug testing program and safety incentive rule was one of six items on a long-term action list for the US Occupational Safety and Health Administration, meaning that the Agency did not expect to have a regulatory measure within 12 months of the publication of the latest Unified Agenda of Regulatory and Deregulatory Actions. . A notification of the proposed regulatory framework for such a regulation is planned to be released in September 2020, according to the Unified Agenda, which was released last week.
"I do not necessarily hold the spirit that something will grow," says Taylor White, Dallas-based senior adviser to Foley & Lardner LLP, who advises employers on workplace safety and other issues. "If it does, I will be interested to see what the actual language is to see if it provides more clarity than what employers have had so far."
OSHA's improved tracing of workplace injuries and diseases, otherwise known as the electronic register of the registry, was a source of fraud for employers and their representatives largely due to the provisions on countermeasures that did not prohibit drug testing of employees but banned employers from use drug testing or the threat of it as a form of negative action against employees reporting injuries or diseases. Similarly, employers opposed OSHA's strong position to use incentives in the workplace security program, which they considered a valuable tool to encourage employees to follow the safety and health regulations of the workforce set up during the Obama administration.
However, in October 201
" Trump administration has had a general focus on rolling back rules from earlier administrations, especially the Obama administration, and the security inspection and drug testing rules included in the anti-retaliation focus were major ticket items at the end of the Obama administration, "said David Klass, of advice with Fisher & Phillips LLP in Charlotte, North Carolina. "It seems that the Trump administration has paused at the moment. I see that the latest legislative agenda puts a permanent stop to these rules."
Actions taken under a security incentive program or a subsequent drug testing policy would only violate the recovery regulations "If the employer has taken measures to punish an employee for reporting work-related injury or illness rather than for the legitimate purpose of promoting the safety and health of the workplace," noted the note.
"I thought it was very interesting, because it looks like I think it is compatible with the memo they issued in October 2018 and clarified their position, and now it takes the position that drug testing and safety incentive programs are reasonable, that they are valuable to employers if they are applied consistently, says Matthew Deffebach, Houston-based partner and director of employment and employment at Haynes and Boone LLP law firm.
Employers spent time and resources trying to plan for compliance with the anti-language language in The rule's introduction before the October 2018 message came out, as Mr Taylor described as "a little whiplash".
"It sounds like they are going down the road as they said they were
OSHA generally checks workplaces based on accidents, says mr. Class.
"Although there has been a lot of concern, there has not been much quote under the rule," he said. "OSHA will not inspect an employer over a drug test or safety incentive program."
Previously, OSHA changed the electronic registration registration register by canceling the requirement for establishments with 250 or more employees to electronically send information from OSHA forms 300 and 301, but these facilities are still required to provide information from their forms 300A summaries, including confidential business information.
"I think the criticism when they abolished some of this rule of uploading the OSHA logs in January was …" why not cancel it more "applying to the anti-retaliation rules that they relate to drug testing and security incentives program? "Mr Deffebach said. "I think this is a signal that the administration would like to do. The next step is to return to the status quo before the rule, for right now it is just a guide." significant changes in their drug test or safety incentive program in response to the original rule, he said.
"I think they see it as really good news," he said. "Although not the law, it is an indication that they will not be quoted by the agency if there was an investigation."
The drug test program and the safety proposal suggested the rule was the big change in the spring of 2019 Unified Agenda, but experts noted that the agency seems to move slowly with a standard for violence in the workplace in health care and social assistance. A mandatory review of the consequences of such a rule for small businesses is planned to begin in October according to the Unified Agenda.
"I'm interested in seeing how it plays," White says. "It is really the only remark, because it is very relevant in the light of much of the violence that has been going on in our country."
The Health and Safety Committee has recently sent clear signals that OSHA will adopt standards to address thermal stress and workplace violence in the healthcare sector rather than relying on the general obligation clause in the Health and Safety Act to quote employers. Bills have been introduced to steer OSHA to implement an industry-wide violence standard, whose employees are disproportionately exposed to such violence.
"I think it will continue to be an active problem," says Deffebach. "Setting this deadline is just an indication of that."