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 December 1 compliance date for federal OSHA’s new electronic recordkeeping portion of the new recordkeeping regulation is fast approaching. Known as “Improve Tracking of Workplace Injuries and Illnesses,” the new federal OSHA rule will require certain employers with more than 20 employees to electronically submit injury records that will be posted on OSHA’s website.