Issue link: http://palletcentral.uberflip.com/i/1071930
palletcentral.com PalletCentral • November-December 2018 27 By contrast, if OSHA finds that such discrimination has occurred (either due to an employee complaint or during a record audit or other inspection event), within 180 days of the adverse treatment of the injured worker, it can issue a citation to the employer, with a maximum penalty of $129,336 per affected worker. While there is no direct relief, per se, for the affected worker, OSHA can negotiate such relief as part of a settlement of the Part 1904 citation matter. So, as a practical matter, an employer's exposure for violation of whistleblower protections, arising from a denial of benefit under an incentive program, has expanded from 30 days to 180 days. It is also important to note that the 2018 policy applies to the E- Recordkeeping rule's application but does not alter any existing case law or directly affect any pending litigation arising under Section 11(c) (which cases are not litigated before the Occupational Safety & Health Review Commission (OSHRC), but ultimately before the U.S. District Court if not resolved administratively with a Dept. of Labor Administrative Law Judge). In addition, while the 2018 OSHA policy interpretation of the 2016 final rule will be in effect in the short term, it could be altered without notice or comment opportunity through subsequent administrative action in a new administration. Finally, alteration of existing safety incentive programs that met the old OSHA criteria (being proactive, without reliance on lagging indicators) unilaterally may violate requirements of Collective Bargaining Agreements that may be in effect that some union locations. This would likely be construed as a violation of the National Labor Relations Act, as constituting a unilateral change in the terms and conditions of employment. It's probably wise to refrain from making further substantive changes to your incentive programs that were designed to conform to the 2016 final rule or the preceding 2012 Section 11(c) memorandum, with respect to utilizing lagging indicators and workplace injuries as a rationale for disqualifying injured workers from receiving any type of benefit. For assistance with review of your incentive, discipline or drug testing programs, contact Adele Abrams at safetylawyer@gmail.com. PC 60" up to 96" wide capacity DISMANTLE MORE PALLETS PER BLADE. © 2018 Wood-Mizer LLC PERIOD. Call or email Brad Kirkaldy for more information today! 765.228.6775 bkirkaldy@woodmizer.com FRONT or REAR Board Catch 19HP Gas Engine CENTER or REAR Drop Table NEW! OPTIONS PALLET HAWG ® PALLET DISMANTLING BANDSAW NEW! Optional Trailer Package Adele L. Abrams is an attorney and safety professional who represents companies in litigation with OSHA and also provides safety training and consultation. The Law Office of Adele L. Abrams PC has three offices: Beltsville, MD; Denver, CO; and Charleston, WV. Adele can be reached at 301-595-3520 or www.safety-law.com.