Fall 2021 regulatory agenda: OSHA considers revoking Arizona’s State Plan status

No rule on post-incident drug testing or incentive programs in the near future

OSHA has withdrawn its attempt to clarify its stance on post-incident drug testing and safety incentive programs “in order to focus resources on other agency rulemaking priorities.”

In October 2018, OSHA issued a memo that allowed for post-incident drug testing in certain situations. That superseded an Obama administration memo in October 2016 that prohibited those tests for employees who report injuries or illnesses, unless an employer had an “objectively reasonable basis.”

OSHA’s stance on safety incentive programs has evolved in three memos issued over the past decade. The first memo, issued in March 2012, deemed those types of incentive programs “problematic” under section 11(c) of the OSH Act. Taking away an incentive for reporting an injury “could be considered unlawful discrimination” against an employee.

The agency attempted to clarify its stance in October 2016 after publishing its Improve Tracking of Workplace Injuries and Illnesses final rule in May of that same year. OSHA stated that 1904.35(b)(1)(iv) in the final rule didn’t prohibit safety incentive programs. However, withholding a benefit such as a cash prize or “other substantial award” because an employee reported an injury would violate that regulation.

In the 2018 memo, OSHA stated that employers could have rate-based programs as long as those programs “are not implemented in a manner that discourages reporting.”

Withholding a prize or bonus because of a reported injury is allowed “as long as the employer has implemented adequate precautions to ensure employees feel free to report an injury or illness.”

The memo states: “An employer could avoid any inadvertent deterrent effects of a rate-based incentive program by taking positive steps to create a workplace culture that emphasizes safety, not just rates.”

Standards update

Andrew Levinson, acting director of OSHA’s Directorate of Standards and Guidance, provided some other updates during the NSC webinar on the agency’s current activities.

OSHA is expected to issue a notice of proposed rulemaking regarding an update to its standard on lockout/tagout (1910.147), perhaps as early as January. Levinson said the NPRM will address computer-controlled lockout/tagout equipment, which aren’t configured for physical locks to be attached.

Also forthcoming is an update to the standard on walking-working surfaces (1910.22). Levinson said the update will involve “cleaning up a couple of little things in the prior standard to look at handrail heights and some tread issues.”

Later this month or early next year, OSHA will convene a Small Business Advocacy Review panel, also known as a Small Business Regulatory Enforcement Fairness Act panel, to discuss its standard on the prevention of workplace violence in health care and social assistance.

A report from an SBAR panel on emergency response and preparedness also will be coming soon.

OSHA is expected to conduct a stakeholder meeting regarding its standard on process safety management and prevention of major chemical incidents. The agency also will likely issue an advance notice of proposed rulemaking on blood lead level for medical removal.

“We’re not changing the PEL,” Levinson said. “This is just the trigger for medical removal, essentially an action level.”