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Workplace Safety and Health Law Blog

Posts from October 2018.

OSHA issued a new Site Specific Targeting (SST) Plan effective October 16, 2018.  Unlike prior versions, this new SST Plan utilizes the 2016 300A data that many employers electronically submitted in December 2017.  The new SST Plan is, therefore, dubbed the SST-16.

House Bill 2 (“HB2”) was signed into law by Governor Matt Bevin and became effective in July 2018. Through HB2, the legislature enacted significant changes to multiple provisions of the Workers’ Compensation Act. One of the most significant changes in the statute is the portion related to injuries resulting from illegal, non-prescribed substances or prescribed substances in excess of prescribed amounts. Previously, if an employee underwent a drug test after an injury, the employer had to prove that the use of non-prescribed substances (illegal drugs or alcohol) was the proximate cause of the injury. The new workers’ compensation law shifts the burden of proof to the injured worker to prove such illegal substances or prescribed substances was not the proximate cause of the injury. This is a significant difference because the illegal or prescribed substance is now presumed to be the cause of the injury until rebutted by the employee.

Today, the U.S. Occupational Health and Safety Administration (OSHA) issued a standard interpretation clarifying its position on the new recordkeeping rule’s anti-retaliation provisions. OSHA’s memorandum essentially “rolls back” its enforcement of the anti-retaliation provisions, particularly concerning safety incentive programs and post-accident drug testing. Why is this important? Mainly because many employers struggled to understand the anti-retaliation provisions since they were published, in guidance materials accompanying the new regulations, in May 2016. Indeed, OSHA has gone to great lengths to explain the anti-retaliation provisions in the new rule’s preamble, with OSHA guidance and several memorandums. To be blunt, OSHA’s explanations have been extremely vague and confusing. But alas, the struggle to understand the anti-retaliation provisions is over … hopefully. Today’s interpretation states supersedes all the prior guidance on this topic.

The 11th Circuit Court upheld the Mar-Jac decision quashing a warrant to expand an inspection beyond the accident triggering the inspection. The decision demonstrates the willingness of at least one Circuit to carefully scrutinize OSHA's justification for expanding the scope of an Inspection.

We're daily seeing Unions and other Third Parties use Safety and OSHA Complaints to harm an Employer's reputation and compel union recognition or economic concessions. Now UNITE-HERE is portraying Marriott's "Go Green" effort as a danger to employees. We fear that employers are not seriously considering this potential public harassment either by checking safety efforts or making response plans in advance.

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