palletcentral

38 PalletCentral • March-April 2021 palletcentral.com 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. She may be reached at www.safety-law.com or 301-595-3520. viewed as a lessening of protections or transparency for workers. e results were a mixed bag. Most significantly for this industry, the Trump-era changes to the OSHA e-recordkeeping rule won in part and lost in part. When the 2016 (Obama) final rule was reopened by the Trump Administration, the modified rule removed the requirement to electronically submit Injury/Illness Forms 300 and 301, retaining only the requirement to submit Form 300A (the Injury/Illness Summary Report) online by March 2nd of each year. e electronic requirement only applies to employers in hazardous industries (listed in Appendix A of the rule but including most construction, manufacturing, warehousing, transportation etc.) with 20 or more employees at a worksite. e Trump rule was legally challenged but has been affirmed by a federal court recently and so the reduced record submission requirement remains in effect. However, a different lawsuit by Public Citizen, challenged the Administration's decision not to make the injury/illness data publicly available, and that was ultimately successful in 2020. OSHA now has that injury/illness data available on its website, searchable by employer for CY 2016-2019. e CY 2020 data will be uploaded once it is submitted this spring. Also related to the e-recordkeeping rule is the shifting OSHA policy on drug testing of injured workers and on safety incentive programs. Under the Obama rule, the enhanced whistleblower protections included an extended 180-day statute of limitations to notify OSHA about retaliation, whereupon OSHA can cite employers and order reinstatement and other relief for the complainant, and an expanded definition of what constitutes retaliation under 29 CFR 1904.36 and Section 11(c) of the OSH Act. On safety incentive programs, the Obama Administration viewed those based on "lagging indicators" (going a period of time without an injury in order to receive a bonus, gift card, or other prize) were a violation of worker's rights to report an injury without reprisal, since an injured worker would be disqualified from receiving something of value simply for having an OSHA recordable event. Under Trump, these programs were again allowed as long as they were part of a strong safety culture, and employees did not feel pressured to conceal injuries. ere was no guidance as to how that should be benchmarked. On drug testing, the Obama OSHA took the position that testing of injured workers solely because they were injured (without reasonable suspicion of impairment/causation) was prohibited except in enumerated circumstances, such as when testing is required by DOT, or worker's compensation laws. e Trump Administration, however, modified this interpretation by policy in October 2018 (which also address safety incentive programs). e 2018 policy allows injured workers to be drug tested regardless of suspicion as long as it was part of a root cause investigation and others (non-injured) were also tested if their actions could have contributed to the incident. At the end of 2020, OSHA put codification of the 2018 policy on drug testing/incentives on its regulatory agenda, in order to block a shift by the next administration. Ultimately, the rule was not promulgated in time and the new administration is free to return to the original application of Part 1904.36. It is highly likely that OSHA will closely scrutinize OSHA logs, worker's compensation reports, and compare these with employee interviews about incidents. OSHA can also issue "egregious" penalties if a pattern or practice of log manipulation is discovered (where OSHA can issue a separate $136,532 penalty for each missing injury report), and do a criminal referral if the logs are inaccurate – the top official at the worksite who signs the OSHA Form 300A (and also those submitting it electronically) would be the designated felons in that situation, under Section 17(g) of the OSH Act. Medical Cannabis During the 2020 elections, the big winner was weed. By the start of 2021, there were 36 states plus D.C. that had legalized medical cannabis, and the scorecard tallied 15 states plus DC with recreational marijuana now legal. Since then, Virginia's legislature passed a recreational marijuana bill, Maryland's legislature is poised to do the same, and prospects are high for further legalization efforts in other states, particularly where tax revenue could offset some of the crippling COVID costs. While marijuana remains illegal under the Federal Controlled Substances Act, Senators Booker, Wyden and Schumer announced in early February that cannabis legalization legislation would be a priority in 2021, and draft legislation is expected shortly (and expected to pass with President Biden's support). is will be the big game changer, as legal cannabis federally will require new assessment of accommodations under the federal Americans with Disabilities Act. Clearly, this is just the start of major changes in OSHA enforcement and regulation under the Biden Administration, so fasten your seatbelts – this may be a bumpy flight!

• Cover