The Occupational Safety and Health Administration (OSHA) announced this week that it’s delaying enforcement of anti-retaliation provisions in its controversial new injury and illness tracking rule, which requires companies to make all their injury and illness data public. Originally scheduled to begin on August 10, enforcement has been pushed back to November 1. The reporting provisions of the rule will still take effect on January 1, 2017.

OSHA says in a release that it’s delaying implementation “to conduct additional outreach and provide educational materials and guidance for employers.” But late last week, a coalition of business groups, including Associated Builders and Contractors (ABC) and the National Association of Manufacturers (NAM), filed a lawsuit in U.S. District Court for the Northern District of Texas challenging the anti-retaliation provisions of the reporting rule. The groups say it “will limit post-accident drug testing and safety programs that contribute to jobsite construction safety,” such as incentive contests that award prizes to workers for injury-free days.

“Associated Builders and Contractors is committed to working with our members and OSHA to create safe construction work environments,” said Greg Sizemore, ABC’s vice president of health, safety, environment and workforce development.  “But it’s inconceivable to those of us who study how to improve safety performance that OSHA would want to limit drug and alcohol testing as part of the investigation after an accident or near-miss incident. Root cause analysis is key to developing procedures that prevent future incidents, so we need to know whether drugs or alcohol were a factor. We also object to OSHA’s attempt to restrict or eliminate programs that recognize workers for helping to establish a high-performance safety culture. This part of the rule could well prevent employers from recognizing safety accomplishments.”

As DWM notes in its June-July issue, OSHA’s new reporting rule includes language that bans post-accident drug testing because the agency thinks it might make employees think twice about going on the record with injury claims.

“The final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses,” the new rule reads. “To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

As far as incentive programs, Richard Fairfax, OSHA’s deputy assistant director, sent a memo to agency officials in March 2012 that laid out acceptable and unacceptable safety incentive programs.

“Some employers establish programs that unintentionally or intentionally provide employees an incentive to not report injuries,” Fairfax wrote. ”For example, an employer might enter all employees who have not been injured in the previous year into a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, there are better ways to encourage safe work practices, such as incentives that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents or ‘near misses.’”

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