The Occupational Safety and Health Administration (OSHA) published a memorandum to clarify the agency’s stance that the electronic record-keeping rule does not prohibit employers from establishing workplace safety incentive programs or post-incident drug testing. This week, we take a closer look at OSHA’s clarifying guidance.
WHAT WAS THE ANTI-RETALIATION RULE?
On May 12, 2016, OSHA published a final electronic record keeping rule that also contained a provision prohibiting employers from retaliating against employees for reporting work-related injuries or illnesses. Although OSHA prepared initial guidance on the rule, safety experts have navigated questions about whether post-accident drug testing or incentive programs would dissuade employees from reporting accidents.
IS POST-ACCIDENT TESTING IS PERMISSIBLE?
In this week’s memo, the safety agency offered examples of permissible drug testing including: random drug testing; drug testing unrelated to the reporting of a work-related injury or illness; drug testing under a state workers’ compensation law; drug testing under other federal law, such as a U.S. Department of Transportation rule. The agency specifically allows for drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. Of note, OSHA suggests that employers should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
HOW SHOULD YOU STRUCTURE INCENTIVE PROGRAMS?
OSHA lauds incentive programs that reward workers for reporting near-misses or hazards, and encourages involvement in a safety and health management system. Similarly, OSHA approves incentive programs that are rate-based and focus on reducing the number of reported injuries and illnesses. Rate-based incentive programs are also permissible as long as they are not implemented in a manner that discourages reporting. Thus, if an employer takes a negative action against an employee under a rate-based incentive program, such as withholding a prize or bonus because of a reported injury, OSHA would not cite the employer under (the regulation) as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.
TURN IN YOUR PAPERS
OSHA’s clarifying memo comes on the heels of reports that nearly 200,000 qualifying workplaces didn’t submit Form 300A electronically by the December 31, 2017, deadline. OSHA had expected more than 350,000 reports. However, just 153,653 were submitted. We will keep tracking this workplace safety issue.
The Power of Michael
Hurricane Michael made landfall in the Florida Panhandle this week as a Category 4 hurricane. With sustained winds of 155 mph throughout the storm, this was the most powerful storm to hit the Big Bend area of Florida's Gulf coast. The death toll has risen to 26. Thus far, Michael caused insured losses between $6 - $10 billion. Including damage to public infrastructure, uninsured losses, and lost economic activity, Michael is expected to cause $30 billion in losses to the region—significant, but still far short of the state’s $100 billion estimated losses from Irma’s strike.
DEFENDING IN BATTLE
Florida Governor Rick Scott directed the state’s top insurance regulator to freeze any potential property-insurance rate increases and suspend policy non-renewals or cancellations issued in the days leading up to Michael in order to give policyholders more time to find coverage. Additionally, the governor called for tightened building codes across the state that mirror the much stricter codes enacted in South Florida 11 years ago. Your authors at The Way are keeping all those affected by the storm in our prayers.
Making Our Way Around the Country
A sharply divided Florida Supreme Court struck down a 2013 law related to expert witness testimony as unconstitutional. The case at bar involved a claim for mesothelioma, but the larger issue involved a 2013 law that changed the state’s use of the “Frye” standard to what is known as the “Daubert” standard for expert witnesses. Generally, Frye relies on the scientific community to determine reliability, whereas Daubert relies on trial judges to determine the significance of the scientific methodology used. The majority said, “with our decision today, we reaffirm that Frye, not Daubert, is the appropriate test in Florida courts.” Look for the decision to affect cases that often turn on the admissibility of expert testimony, notably product defect, complex tort claims, and medical malpractice.
DEPARTMENT OF TRANSPORTATION
Transportation Secretary Elaine Chao has appointed 15 people, including representatives of the trucking industry, to serve as members of the new Advisory Committee on Human Trafficking. The committee, required by the bipartisan Combating Human Trafficking in Commercial Vehicles Act, includes leaders of organizations that fight modern slavery, researchers, and representatives of the trucking, bus, rail, aviation, maritime, and port industries who aim to detect, deter, and disrupt human trafficking. In other DOT news, Secretary Chao issued the department’s third official stance on self-driving. This version adapts the definitions of ‘driver’ and ‘operator’ to recognize that such terms do not refer exclusively to a human, but may include an automated system.
The Wisconsin Workers' Compensation Advisory Council will hold a public hearing November 12th, to hear input on changes needed to the state's compensation laws and regulations. The hearing is the first step in gathering information for the council's annual report to the Legislature. The hearing will be held by way of video conference in seven locations around the state to allow widespread public input. Written comments may be submitted to the advisory council no later than December 3rd. We will track the Council’s work this fall.
Finally, we circle back to our main story this week. This morning, Canada became the second country in the world where marijuana is legal on a national level, as Bill C-45, approved by Parliament in June, became effective. Adults across Canada can possess up to 30 grams of the drug and grow as many as four plants of any size per household, although additional regulations may be enacted at the province level. We’ll be keeping watch on the drug’s uptake in Canada, as the U.S. risk and insurance industry eyes federal legalization efforts in Congress, particularly as we head into the Mid-Term elections.