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



ILMA Compoundings September 2016

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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