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Top 10 Most Frequently Cited OSHA Standards, 2018 Edition

While it is not comparable to David Letterman’s Top 10 lists, at a recent industry gathering, OSHA announced its annual top 10 violations for fiscal year 2018 (October 1, 2017, through September 30, 2018).

Unpreventable Employee Misconduct: Defending Your Company when there is No Defense to the Conduct

What if one or your workers – who should and does know better – violates an OSHA standard? Shouldn’t an employer be able to defend itself from the violation even when there is no dispute that the underlying conduct occurred? The answer is yes, provided the four elements of the “unpreventable employee misconduct” defense are met.

OSHA: Legal Developments and Defense Strategies OSHA Relaxes Position regarding Safety Incentive Programs and Post-Incident Drug Screening

On October 11, 2018, OSHA issued a Memorandum (the Memorandum) ostensibly clarifying its position on post-accident drug testing and employee incentive programs. Any fair reading of the Memorandum, however, shows that OSHA is actually doing a lot more than simply “clarifying” its position – in some respects, it is completely reversing course. This is especially true with respect to safety incentive programs. And employers should take note.

OSHA Clarifies Position on Safety Incentive Programs, Post-Accident Drug Testing

The Occupational Safety and Health Administration (OSHA) has issued a memorandum clarifying that anti-retaliation provisions of a workplace injury and illness reporting rule do not prohibit the use of either safety incentive programs or post-incident drug testing policies. Instead, employers must implement such programs with caution to ensure the programs do not discourage employees from reporting workplace injuries or illnesses.

OSHA Announces New Position On Post-Incident Drug Testing and Safety Incentive Programs

On Oct. 11, 2018, the Occupational Health and Safety Administration (OSHA) sent a Standard Interpretation Memorandum to its regional administrators and to state plan designees clarifying its position on post-incident drug tests and safety incentive programs. According to the memo, such tests and programs are permitted if properly written and implemented.

Federal Court Limits Scope of OSHA Inspection Authority

On October 9, 2018, the U.S. Court of Appeals for the Eleventh Circuit affirmed a district court decision to limit the scope of an inspection sought by the Occupational Safety and Health Administration (OSHA). In this significant decision for employers, the court of appeals held that OSHA may not conduct a facility-wide or “wall-to-wall” inspection based on a reported accident and the employer’s OSHA 300 logs alone.1

About Face: OSHA Clarifies that Safety-Incentive Programs and Post-Incident Drug/Alcohol Testing ARE Permissible

On October 11, 2018, in an about-face on prior guidance, the Occupational Safety and Health Administration (OSHA) issued a significant Standard Interpretation Memorandum regarding safety-incentive programs and post-incident drug/alcohol testing. In the new Memorandum, OSHA shifts course and clarifies that such programs and testing are permitted if properly drafted and enforced.

What’s on OSHA’s Agenda...Fall 2018 Regulatory Agenda Released

It’s that time of year again…when OSHA tells us what is on the horizon for rulemaking activity. Earlier this week the fall semiannual regulatory agenda for federal agencies was published. This Regulatory Agenda provides a complete list of all regulatory actions that are under active consideration for promulgation, proposal, or review and covers regulatory actions for over 60 federal departments, agencies, and commissions.

New OSHA Guidance: Certain Safety Incentive Programs, Post-Accident Drug Tests Permissible

Most safety incentive programs and post-incident drug testing policies will not be considered retaliatory and unlawful under a new Standard Interpretation from the Occupational Safety and Health Administration (OSHA).

OSHA's Site Specific Targeting Plans are Back and Based on E-reporting!

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.