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OSHA Update: Penalties and Drug Testing

by Joseph N. Gross, Esq., partner

Benesch, Friedlander, Coplan & Aronoff LLP

Safety has to be one of the top concerns for all plastics processors. The Occupational Safety and Health Administration (OSHA) has just made it more important from a financial perspective. On Aug. 1, 2016, OSHA started imposing financial penalties that are significantly higher than before. Penalties for serious citations have increased from $7,000 to $12,471. Penalties for willful or repeat citations have increased from $70,000 to $124,709. OSHA now is using the new maximum limits to address all safety standard violations occurring after Nov. 2, 2015.

OSHA had not increased its penalties for 25 years. But, in November 2015 when President Obama signed that year’s budget bill, the Federal Civil Penalties Inflation Adjustment Act Improvements of 2015 came into effect. That act permitted the Department of Labor to adjust its panoply of penalties to catch up with the past quarter-century’s worth of inflation – 78 percent – and to make future adjustments annually for the same reason without having to ask Congress.

Processors whose operations are in states that have their own safety and health plans also will see their state agencies increase the maximum penalties to be at least as high as OSHA’s maximum penalties.

I see a couple of immediate ramifications for plastics processors with regard to the increased penalty rates. First, the new penalties will force plants to take their safety obligations even more seriously because violations will have a bigger financial impact. That might mean a desired piece of equipment that did not quite have the required return on investment now can get over the threshold. It also might mean that safety engineers may find new job opportunities and safety consultants will be more difficult to schedule.

Second, processors will have an increased incentive to fight those penalties they feel are unwarranted. That might mean tougher negotiations with OSHA during informal settlement conferences and taking more cases to trial. Perhaps OSHA will be more lenient in combining violations into a single citation. Perhaps not.

Now, to the unbelievable. OSHA promulgated a new rule, entitled “Improve Tracking of Workplace Injuries and Illnesses,” which was published in the Federal Register on May 12, 2016. Although it portends that the rule is an accident-tracking regulation, OSHA is, intentionally or not, going after employers’ drug testing programs. For example, the rule’s text contains the common sense requirement that, by Aug. 10, 2016, employers establish “a reasonable procedure” for employees to report work-related injuries. However, the comments to the rule make clear that “blanket” post-injury drug testing is at the center of OSHA’s crosshairs:

Although drug testing of employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.

Thus, OSHA reasons, “[t]o 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.” OSHA advises that bee stings, repetitive strain injuries or injuries caused by a lack of machine guarding/machine or tool malfunction are instances in which a post-accident drug screen would “likely not be reasonable.”

Plastics processors should consider the following questions with regard to the rule:

  • Does my workplace have a “blanket” post-injury testing policy? MAPP members whose workplaces have “blanket” post-accident testing policies should consider including a “reasonable suspicion” element or beefing up their random drug testing to catch drug use before it causes an accident.
  • Is my workplace complying with other federal drug testing requirements? MAPP members whose workplaces employ over-the-road drivers or other employees required to be tested by federal law should continue to test for all required substances. A policy which is crafted within another agency’s requirements should have a defensible position against OSHA’s concern about employers encouraging employees not to report their injuries.
Joseph N. Gross, Esq. is a partner with Benesch, Friedlander, Coplan & Aronoff LLP in its Cleveland, Ohio, office. He is certified by the Ohio State Bar Association as a Labor and Employment Law Specialist and can be reached at 216.363.4163 or jgross@beneschlaw.com.