b'SAFETY CULTURE AND THE ENTREPRENEUR OSHA UPDATEGarys CornerupdateGary Auman, MRCA Legal CounselA s you all know the New OSHA Electronic Recordkeepingresulted in a report of an injury, OSHA will have to prove that the Rules went into effect on January 1, 2017. On Decemberdiscipline was for reporting the injury, not for violation the safety 1, 2016 the New OSHA Anti-Retaliation Rulesrule. In other words OSHA will have to prove that the alleged concerning recordkeeping and reporting work related injuries andrule violation was merely a pretext for being able to discipline illnesses to employers went into effect after several delays. Since thethe employee for reporting the injury. OSHA points out that effective date for the anti-retaliation rules there has been quite a bitcircumstantial evidence may be sufficient to prove its retaliation case.of speculation as to whether the new Administration will enforceSo, what does an employer need to do to avoid such a result? these new rules or will take steps to eliminate or circumvent them.As I have stated many times, every employer needs to have a safety Since the rules were adopted as part of the electronic recordkeepingenforcement program. How can you say that you are a reasonably standard, which was adopted under the formal Administrativeresponsible employer from a safety perspective if all you do is Procedures Act, they cannot be eliminated with the stroke of a pen.provide safety rules, but never ensure that your employees comply But, the new Secretary of Labor and the new OSHA Administratorwith them? Again, as I have preached over and over againYOU can set parameters for their enforcement.NEED AN EFFECTIVE SAFETY COMMUNICATION AND Even guidelines from the new administration, should theyENFORCEMENT PROGRAM. First, you must determine the occur,for the enforcement of part or all of the new anti-retaliationhazards to which your employees will be exposed. Second, you rules will take time to be effective. Until such time (if it occurs) allneed to develop rules for protecting your employees from those employers are bound by the new rules. But, all is not lost. OSHAhazards. This might include guards, the use of PPE, or the adoption has issued several interpretive documents regarding the new rules.of administrative controls. Third, you need to communicate those OSHA has reminded us that it still has to prove that a companyrules to all of your employees and remind them that they will receive rule for reporting workplace injuries or illnesses that appears to bediscipline up to and including termination from employment for retaliatory to employees was established to discourage employees from reporting workplace injuries. you need to be sure they understand the Work-Related Injury and Illness Reporting Procedures rules and their obligations to complyThe first requirement under the new rules is that employersviolation of those rules. Fourth, you need to be sure they understand must establish and train their employees on procedures for reportingthe rules and their obligations to comply with them. Fifth, you need workplace injuries and illnesses. The procedure must be easy toto establish an audit program to monitor your employees for their understand and must be reasonable. For example, OSHA willcompliance. And, sixth, you need to issue discipline and provide consider a prompt reporting rule, that results in employee disciplineretraining for each safety violation, not matter how serious. for late reporting, even when the employee could not reasonablyIf you follow the steps noted in the preceding paragraph and have reported the injury or illness earlier, to be a violation of Sectionenforce your safety rules consistently and objectively, you should 1904.35(b)(1)(iv). OSHA will consider your reporting procedure tonever have a problem demonstrating that the discipline you issued be reasonable if it is not unduly burdensome and would not deter afor the safety rule violation that lead to the work-related injury or reasonable employee from reporting. illness was a legitimate enforcement of your safety rules. One key OSHA has stated in a memorandum for regional administratorshere is to be to show that you issue discipline as needed to enforce dated October 19, 2016, that: While employers have an interestyour safety program whether or not an injury resulted from the in maintaining accurate records and ensuring that employees aresafety violation.reporting work-related injuries and illnesses in a reasonably promptMandatory Post-Accident Drug Testingmanner, these interests must be balanced with the importance of accurate injury reporting and therefore employers reportingThe last point I will address is the one probably causing the policies must be designed so as not to discourage employees frommost confusion among employers. This relates to the announced reporting. In other words, if your injury and illness reportingprohibition of mandatory post-accident drug testing. My experience policies are so complicated or time restrictive, while bring connectedin working with my trade association members is that many have with disciplinary measures so as to discourage an employee froma requirement for mandatory post-accident drug testing as part of reporting an injury or illness for fear of not correctly following alltheir drug free workplace program. The concern here is that many the steps in a timely manner, you will likely be cited under thisof these programs, established for a legitimate purpose, will have to standard. be eliminated. OSHA has pointed out that mandatory drug testing Safety Discipline programs which are required by local, state or federal laws will be permitted as they are legally mandated. But, what about those other Another concern under the new rules is the prohibition ofprograms that also have a legitimate purpose, but do not have the disciplining an employee for violation a safety rule, which violationprotection of a law? results in an injury. In the same informational memo referred toSome confusion has arisen on this issue. There appear to be above OSHA has reminded employers as well as its own regionalmixed interpretations of this prohibition coming out of different directors that the new standard does not prohibit employers fromOSHA area offices. We have not yet seen how all of the state-OSHA disciplining employees who violate safety rules; it does prohibitstates, will handle mandatory post-accident drug testing.First, this employers from disciplining employees simply because they reportedmandatory post-accident drug testing prohibition applies only to a work-related injury or illness. If OSHA cites an employer fordrug testing connected to injury reporting. So, an employer may disciplining an employee for violating a safety rule which violation 6 www.mrca.orgMidwest Roofer'