ILMA Compoundings September 2016 - 35

RULES & REGS Anti-Retaliation Provisions, Incentive Programs and Drug Testing In addition to the new electronic reporting requirement, the rule also mandates that employers inform employees of their right to report workplace injuries and establishes that employers may not implement policies that would potentially discourage reporting. More specifically, employers must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not appropriate if it "would discourage a reasonable employee from accurately reporting a workplace injury or illness." Notably, OSHA does not provide further detail in the final rule regarding reporting procedures. Finally, employers may not terminate or discriminate against an employee who reported an injury or illness. The rule takes a firm stance on employee incentive programs. Many programs that employers may perceive as incentivizing safe behavior (e.g., a rewards program for no or low injury rates) might actually be in violation of the new rule as OSHA views many of those programs as discouraging open and honest reporting. OSHA notes in its final rule that "programs must be structured in such a way as to encourage safety in the workplace without discouraging the reporting of injuries and illnesses." Many of the incentive programs hinge upon whether a "reasonable employee" would be discouraged from reporting as a result of the policy. As a result, any incentive programs should be carefully structured. The regulation also takes a narrow view of drug testing. From OSHA's perspective, drug testing could potentially discourage injury reporting. Therefore, blanket drug testing policies (e.g., those that are automatically triggered after an injury is reported) are generally impermissible. In OSHA's estimation, drug testing should be utilized only if the employer believes drugs or alcohol was the causal or a contributing factor to the injury. OSHA is concerned that employees will not report injuries for fear of being subjected to drug testing. The final rule notes that some states' workers' compensation laws require drug testing, and OSHA asserts that testing in that instance would not run afoul of the rule. Importantly for ILMA members, OSHA announced in July 2016 that it would delay enforcement of the anti-retaliation provision of the rule. It was originally supposed to go into effect on Aug. 10, 2016, but enforcement is now delayed until Nov. 1, 2016, as a result of a legal challenge outlined below. Legal Challenges Currently, there is litigation pending in U.S. District Court for the Northern District of Texas in the case Texo ABC/AGC, Inc., et al. v. Perez challenging the retaliation and incentive provisions as arbitrary and capricious and an abuse of agency discretion. The industry groups, led by the National Association of Manufacturers and Associated Builders and Contractors, indicated their intention to limit the challenge to those provisions that were supposed to be implemented first. Further challenges to the electronic reporting provisions that go into effect in 2017 are likely. Next Steps ILMA members should review the final rule and any policies currently in place regarding injury reporting, drug testing and any incentive programs. Any drug or alcohol testing programs should be narrowly tailored. Further, it is important to note that 27 states have OSHA-approved "state plans." Those states must promulgate rules that are substantially similar to federal OSHA regulation within six months. However, OSHA's new rule sets a floor and not a ceiling, so states are free to implement a regulation that theoretically is more onerous than the federal rule. Finally, it may be advisable to consult with your counsel regarding implementation of reporting procedures, drug testing and incentive programs to ensure that they are aligned with the requirements of the regulation. Bryant serves as regulatory counsel to ILMA through Bassman, Mitchell, Alfano & Leiter Chtd. He may be reached at 202-386-7670 or dbryant@bmalaw.net. Compoundings September 2016 * 35 * Vol. 66 No. 9

Table of Contents for the Digital Edition of ILMA Compoundings September 2016

FROM THE CEO
BOARD BRIEF
NOTES FROM MSCI
THE HEART OF ILMA
THE ARGUS ANALYSIS
VOICES & VIEWS
INTERNATIONAL INSIGHT
SPEAKER SPOTLIGHT
FAMILY BUSINESS
FINANCIAL FREEDOM
RULES & REGS
POWER PLAY
LEGAL EASE
THE WHITE PAPER
ADVERTISERS INDEX
ILMA Compoundings September 2016 - 1
ILMA Compoundings September 2016 - 2
ILMA Compoundings September 2016 - 3
ILMA Compoundings September 2016 - 4
ILMA Compoundings September 2016 - FROM THE CEO
ILMA Compoundings September 2016 - 6
ILMA Compoundings September 2016 - 7
ILMA Compoundings September 2016 - 8
ILMA Compoundings September 2016 - BOARD BRIEF
ILMA Compoundings September 2016 - 10
ILMA Compoundings September 2016 - 11
ILMA Compoundings September 2016 - 12
ILMA Compoundings September 2016 - NOTES FROM MSCI
ILMA Compoundings September 2016 - 14
ILMA Compoundings September 2016 - THE HEART OF ILMA
ILMA Compoundings September 2016 - 16
ILMA Compoundings September 2016 - 17
ILMA Compoundings September 2016 - 18
ILMA Compoundings September 2016 - 19
ILMA Compoundings September 2016 - 20
ILMA Compoundings September 2016 - THE ARGUS ANALYSIS
ILMA Compoundings September 2016 - 22
ILMA Compoundings September 2016 - 23
ILMA Compoundings September 2016 - VOICES & VIEWS
ILMA Compoundings September 2016 - 25
ILMA Compoundings September 2016 - INTERNATIONAL INSIGHT
ILMA Compoundings September 2016 - 27
ILMA Compoundings September 2016 - SPEAKER SPOTLIGHT
ILMA Compoundings September 2016 - 29
ILMA Compoundings September 2016 - FAMILY BUSINESS
ILMA Compoundings September 2016 - 31
ILMA Compoundings September 2016 - FINANCIAL FREEDOM
ILMA Compoundings September 2016 - 33
ILMA Compoundings September 2016 - RULES & REGS
ILMA Compoundings September 2016 - 35
ILMA Compoundings September 2016 - POWER PLAY
ILMA Compoundings September 2016 - 37
ILMA Compoundings September 2016 - LEGAL EASE
ILMA Compoundings September 2016 - 39
ILMA Compoundings September 2016 - THE WHITE PAPER
ILMA Compoundings September 2016 - 41
ILMA Compoundings September 2016 - ADVERTISERS INDEX
ILMA Compoundings September 2016 - 43
ILMA Compoundings September 2016 - 44
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