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By: Amy Bender
Two recent OSHA developments signal good news for employers.
The first relates to the scope of OSHA inspections of an employer’s workplace. In a recent federal court case, after an employee of a poultry processing plant was injured at work, the employer reported the incident to OSHA as required. It also provided 3 years of its injury and illness (“OSHA 300”) logs and permitted OSHA to inspect the particular hazards relating to the injury. OSHA then sought a warrant to inspect the employer’s entire facility based on this information as well as the fact that poultry processing plants were included in OSHA’s Regional Emphasis Program, which had identified hazards of particular concern to that industry. After the warrant was issued, the employer objected. The court agreed with the employer and quashed the warrant, finding a lack of reasonable suspicion to support such a broad inspection and a lack of evidence that OSHA selected the employer for inspection applying neutral criteria. Although the permissible scope of an OSHA inspection will depend on the individual circumstances of each situation, this case can give employers some comfort that OSHA’s authority is not unfettered. The case may be read here: USA v. Mar-Jac Poultry, Inc., Case No. 16-17745 (11th Cir. Oct. 9, 2018).
The other development relates to OSHA’s stance on post-accident drug testing and workplace safety programs. As we previously reported here, OSHA published a final rule in 2016 prohibiting mandatory, across-the-board post-accident drug testing as being discriminatory against employees based on their injury or illness reporting and limited testing to situations where employee drug use was a likely factor in the incident. The final rule also required employers to develop employee injury and illness reporting requirements that meet certain criteria, including informing employees of their right to make such reports without fear of retaliation. The final rule left employers scrambling to revamp their long-standing and well-meaning policies and procedures relating to workplace safety. Fortunately, OSHA now has issued a memorandum clarifying that it does not prohibit workplace safety incentive programs or post-incident drug testing. Such programs are impermissible only to the extent they are intended to penalize employees for reporting a workplace injury or illness. The memorandum provides additional guidance on what will be considered acceptable reporting policies and drug-testing procedures. The memorandum is available here.
If you have any questions or would like more information, please contact Amy Bender at [email protected].