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Expect Higher Penalties, New Safety Program Requirements from OSHA

Penalties for OSHA violations are expected to increase again – on top of an increase of approximately 78 percent that went into effect on Aug. 1, 2016. The penalty for “willful” repeat violations, for example, increased from a maximum of $70,000 to $124,709.

Milwaukee attorney Eric Hobbs, of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., talked to the RPNI Loss Control Practice Group about current issues in OSHA regulations, including the new electronic injury reporting/recordkeeping rule and anti-retaliation provisions. Hobbs is part of the workplace safety employment group of the firm, which specializes in labor law.

OSHA has taken the position, he said, that automatic post-incident drug testing deters employees from reporting injuries. As a result, employers may not use drug testing or the threat of drug testing as a form of adverse action against employees who report injuries. Blanket post-incident drug test is prohibited.

Although blanket drug-testing is prohibited, testing is appropriate if there is a reasonable suspicion that drug use may be involved. The challenge is to explain why drug-testing did not take before an accident if the employer had a reasonable suspicion of drug use.

Consider Effectiveness of Safety Incentives

Safety incentive programs also are a concern. OSHA states that if programs are “not structured carefully, they have the potential to discourage reporting of work-related injuries and illnesses without improving workplace safety.”

For example, monetary bonuses, gift cards or perks for accident-free periods may deter a reasonable employee from reporting a work-related injury or illness. A better approach is to find incentives to promote participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents and “near misses.”

Requirements for electronic reporting of injuries and illnesses are being phased in this year.

“Not Dead and Not Going to Be”

Despite the changes in the federal administration, OSHA “is not dead and it is not going to be dead,” Hobbs said. “We want regulations both because we are care and because we don’t want other companies to have a competitive advantage by saving money from failing to protect workers’ safety and health. It is both a legal matter and a moral matter.”

Another current concern, he added, is expected new rules on silica, which is “everywhere from soft drinks to road-building operations.”

What should employers do?

  1. Prepare to file reports by Dec. 2.
  2. Review post-accident drug testing policies, but don’t necessarily overhaul them.
  3. Review safety incentive programs.
  4. Don’t overreact.

Hobbs can be reached at (414) 239-6414 or eric.hobbs@ogletree.com.

The program was arranged by Loss Control Practice Group Co-Chair Theresa Focardi of SullivanCurtisMonroe. The other co-chair is Rich DeLeau of BHS.


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