Issue link: http://palletcentral.uberflip.com/i/1071930
24 PalletCentral • November-December 2018 palletcentral.com of the testing results) it was believed that the worker's impairment was a causal factor in the incident. This obviously put a heavier burden on the employer to do a quick "root cause analysis" in order to determine causation and suspicion of impairment and then decide on testing, all within the short timeframe when a drug or alcohol test could still be effective. From a legal perspective, the 2016 final rule's preamble discussion of how the rule applies to actions taken under workplace safety incentive programs, discipline and drug testing programs is likely to carry more weight than the new policy when the first cases get litigated arising from the enhanced whistleblower protections in Part 1904. The issue may also be tested first via an employee complaint under Section 11(c) of the OSH Act. The 2016 rule's preamble relates back to a now-superseded 2012 memo that clarified the agency's view that the act of reporting an injury or illness was a protected activity under Section 11(c) of the Occupational Safety & Health Act of 1970 (OSH Act), and that certain safety incentive programs based on going a period of time without a recordable injury, and denying an injured worker a benefit as a result of the injury/illness, would be viewed as a Section 11(c) violation. The 2012 policy resulted from a 2009-2011 Recordkeeping National Emphasis Program that found over 50 percent of employers were underreporting injuries on their OSHA logs, and that employees were dissuaded from reporting injuries or illnesses if they would lose an incentive prize, or if they feared discipline or drug testing. The big question is whether courts will give more weight to the 2012 policy and the 2016 final rule preamble that supports the 2012 interpretation, or the 2018 policy that contradicts both of the earlier positions, in future litigation. SAFETY A valuable resource developed by NWPCA and Koffel Associates is available from PalletCentral.com/ComplianceManual. The resource is free to members and non-members, fire code officials, safety managers, office managers and more. The manual contains guidance on site plans, fire prevention plans, emergency response plans, and emergency plans, along with many checklists and housekeeping templates to download and adapt for your specific facility. This is a great tool to share with your local fire officials too. Take a proactive approach and work with your fire official to gain compliance quickly and effectively. Download NWPCA Fire Code Compliance Manual – It's Free! The October 2018 memorandum clarifies that new standard 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."