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22 PalletCentral • November-December 2018 n October 11, 2018, OSHA issued a memorandum clarifying the agency's position on how the new Electronic Recordkeeping rule (which amended 29 CFR Part 1904 and added new anti-retaliation provisions to protect workers who report an injury or illness) relates to workplace safety incentive programs and to post- injury/illness drug testing of the worker reporting the condition. The new policy represents a major shift from the perspective outlined for enforcement at the time the final rule was issued, which was under President Obama's administration in May 2016. The new 2018 Standard Interpretation Memorandum was issued by OSHA's Acting Director of Enforcement Programs Kim Stille, and is directed at Regional Administrators and State Designees, rather than being guidance issued to the general public. However, the policy will likely be utilized by OSHA state-plan states as well when enforcing their comparable provisions on whistleblower protections, although they do have authority to have more stringent requirements than federal OSHA and will be free to ignore the federal policy. Therefore, it's critical to remember that programs that will now be permitted under the new federal OSHA enforcement policy may still be illegal in some of the 22 state plan states or territories. The October 2018 memorandum clarifies that new standard 29 CFR 1904.25(b)(1)(iv) does not prohibit workplace safety incentive programs or post-incident drug testing. It takes the revised position that many safety incentive programs are implemented by employers, or post-incident drug testing is done by employers, "to promote workplace safety and health." It clarifies that "evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates." The memorandum clarifies that action taken under a safety incentive program or post-incident drug testing program would only constitute a violation "if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health." While the agency memorandum does promote proactive incentive programs, where rewards are based on reporting of near-misses or hazards, involvement in a safety and health management system (and the 2012 policy added other options such as having a party at the completion of training, or contests for safety slogans), it now re- legitimizes rate-based incentive programs "as long as they are not implemented in a manner that discourages reporting." Therefore, no SAFETY OSHA Issues Revised Policy: By Adele L. Abrams, Esq., CMSP O Safety Incentive &

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