PROTOCOLS IF OSHA, ICE OR OTHER AGENCIES COME ON YOUR PROPERTY

When any agency comes on the property, first notify the Manager/Owner of the Property.

If you are one of our customers, call HR Mobile Services at (559) 625-2322 or Ken directly

Keep the agents aside and away from other workers until you know the reason for their visit.

Ask to see their credentials.

Verify if this is a random visit, or due to a complaint being filed.

Make note of any dates that may be limiting their search.

If they are with ICE, you have 72 hours to produce the I-9s in question.  Do not let them intimidate you as this is your right.  Kindly ask them to leave and set a time and date to meet with them in 3 days.

If they are with OSHA, you can only put them off for an hour or so until the highest ranked supervisor on the property can be contacted and meet them.  Meanwhile, make sure they are kept by the office or away from viewing most of the property and employees.  Check your phones, as HR Mobile Services, Inc. may be trying to reach you to give you additional directions.  Make sure to have someone check restrooms for Paper and Paper towels.  Check for quick items like no personal food mixed with medication in the refrigerators, electrical panel doors shut, general clutter and tripping hazards put away.

IS WATER AVAILABLE AND PAPER CUPS WITH A TRASH RECEPTICLE NEARBY?

Keep your employees calm.  They are much safer on the dairy than if they leave the location.  Nothing can happen to them on the property, they are protected.

BE COURTEOUS AND LISTEN TO WHAT THE INSPECTORS ARE TELLING YOU.   YOU WANT TO HAVE A GOOD WORKING RELATIONSHIP AT THIS POINT.   YOU DON’T NEED TO BE THEIR FRIEND, BUT YOU DON’T NEED ANY ENEMIES EITHER.   STAY CALM! 

If you are one of our customers……..Call HR MOBILE SERVICES, INC. (559) 625-2322 IMMEDIATELY!

100% HEALED BEFORE RETURN TO WORK POLICY IS NOT LEGAL

Blanket policies that say an employee must be 100-percent healed before he/she can return to work after an injury are unlawful. Instead, you must assess whether the employee can perform the essential functions of the job with or without reasonable accommodation.

The Department of Fair Employment and Housing (DFEA) is the California equivalent of the EEOC Federal agency. Recently, there has been increased use of the Americans with Disabilities Act (ADA) in conjunction with worker’s compensation injuries. Specifically, employers must make a reasonable effort to accommodate modified duty or they are not complying with the ADA.

The Fair Employment and Housing Act (FEHA) prohibits discrimination against employees with disabilities and requires employers to provide a reasonable accommodation to allow qualified employees with disabilities to perform their jobs.

“Whenever an employee with a disability seeks an accommodation, the employer has a duty to provide an individual assessment to determine if that employee can perform the duties of the job, with or without an accommodation,” said DFEH Director Kevin Kish.

Policies requiring employees to be ‘100% healed from injury’ in order to work deny employees their right to an individual assessment and violate the FEHA.”

A recently resolved case cost the employer $250,000 and a number of policy changes and required training of management staff.

Our Worker’s Compensation personnel are willing to work with you and your adjuster to come up with ideas to allow the employee to work while recovering.

NEW PAYROLL \ W-2 SCAM MAKING THE ROUNDS….BEWARE!

Recently the Internal Revenue Service (IRS) issued an alert to payroll and human resources professionals to warn them about an email scam.  In our effort to keep our customers protected and informed we are passing along this information.  Also, please note that all W-2 forms should be distributed in California no later than January 31.  If your w-2 is returned by mail as undeliverable, do not open the envelope. The sealed envelope with its postmark serves as proof that you attempted to send the Form W2 on time. Make a copy of the envelope and keep the copy in your records for 4 years.

The IRS is urging company payroll officials to double check any executive-level or unusual requests for lists of Forms W-2 or Social Security numbers (SSNs).

In this scam, cybercriminals attempt to trick payroll and human resource officials into disclosing employee names, SSNs and income information. The thieves then use the stolen personal information and data to try to obtain money, including filing fraudulent tax returns for refunds.

The criminals send a fake or “spoofing” e-mail pretending to be from the actual CEO or CFO of the company. In the email, the “CEO” requests a list of employees and information about the employees, including their SSNs, from company payroll officers or human resource employees.

The following are some of the details that may be contained in the emails:

  • Kindly send me the individual 2016 W-2 (PDF) and earnings summary of all W-2 of our company staff for a quick review.
  • Can you send me the updated list of employees with full details (Name, Social Security Number, Date of Birth, Home Address, and Salary).
  • I want you to send me the list of W-2 copy of employees wage and tax statement for 2016, I need them in PDF file type, you can send it as an attachment. Kindly prepare the lists and email them to me ASAP.

The IRS warns that cybercriminals are using more sophisticated tactics to try to steal even more data that will allow them to impersonate taxpayers.

Concerned employers can visit the IRS website to get assistance with reporting phishing and other online scams.

For more information on protecting personal, financial and tax data, see IRS.gov/taxessecuritytogether for additional steps businesses and individuals can take. Businesses that retain sensitive financial data are also encouraged to review and update their security plan. Safeguarding Taxpayer Data, A Guide for Your Business, provides a starting point and recommendations from the IRS.

Cal\OSHA Changes Interpretation of Laws

For 2017, Cal\OSHA is aligning itself more completely with OSHA in the way it views repeat offenders.  You can read the whole report written by Littler Global at this site https://www.littler.com/publication-press/publication/calosha-amendment-significantly-expands-its-definition-%E2%80%9Crepeat%E2%80%9D

In Summary, Cal\OSHA can now go back 5 years and if you have a “substantially similar” citation at any of your locations in California, it will be considered a “repeat” violation and you could be subject to fines of over $70,000.  The five year look-back begins on the date that the citation is finalized, so if you appeal the citation, it could delay the finalizing date and mean the actual time from the original violation could be almost 6 years old and still be within the 5-year window for repeats.  This may affect strategies going forward.

Also, please take note of the fact that this is a repeat at any facility within your organization that is in the State.  So, if you have a citation for your eyewash station in one location, if you have a shower citations (substantially similar) problem in another location, they could be listed as repeat violations and the fines would grow about 4 fold.

Comparing first-quarter figures from the past six years, the number of Cal/OSHA investigations has risen steadily, from 2,608 in 2011 to 3,375 in 2016, nearly a 30% increase. Citations for alleged serious violations have increased even more significantly – by 330% in the same period. Alleged serious violations represented 21% of total cited alleged violations for the first quarter of 2016 versus only 10% in 2011.

So, be prepared.  Walk your property with an open eye.  Invite HR Mobile Services to come out and help you identify problems.  Check your paperwork!

The clear message here is that you should take these citations seriously and implement changes at all locations to address an issue so that it does not cost you again.

Final Thoughts on 2016 and a Caution to Legislators and Employers for 2017

I will begin this by saying that some of this article is focused on California, while much can be applicable to the rest of the United States.  The San Joaquin Valley is a microcosm of what has taken place across this country.  The rural, farming and agriculture areas of this country are tired of being ignored.   And finally, they stood up in November and got the attention of the people that think that life is only lived in big cities.

California politicians are very good at double speak.  They say they are supportive of Agriculture, but none of them every actually come to the Valley to talk to business owners.  On the rare occasion they do come to the Valley it is to talk to the workers or to point at a High Speed Rail train that is not going to do anything for people here.

The fact is, California, and many State governments across the country, would prefer if Agriculture would just go away.  They would much rather we were all working in a state full of Silicone Valley businesses.  They are cleaner, there would be no fight over water, and we could just ignore it altogether.  In the past election, we did not get visits by Hillary (Trump dropped in quickly) and Kamala Harris (the new Senator) didn’t bother with and knows nothing about this side of California.  The Governor has only been to Fresno a few times in 6 years and that is never to learn about real issues (he knows it all I guess).

For the rest of the country, the story is similar.  President Obama flew over the rest of the US and only visited a few coastal states in 8 years in office.  He came to California almost monthly to San Francisco or Los Angeles to attend a fund raiser, but on the ONE occasion that he came to the valley to discuss the drought, he got off the plane, went to a dirt field for about 1 hour and then flew out because he had a golf date in Southern California (where they had water to make beautiful greens for his putting).  We never saw a thing done about the drought after that and still have not until last week when a bill (0pposed by outgoing Senator Barbara Boxer) was signed by the President to help us build dams.  This was not because of any work done by the President, but by the work of our Representatives from the Valley that finally got enough support from  enough people in both parties to get this to the President despite Barbara Boxer.

One of the most telling examples of how Legislators view business owners is how they write regulations.  Almost all regulations start with the assumption that most employers are bad.  In fact, many times it is actually written into the introduction and states that this bill must be passed to protect the workers, etc.  The reality is that most employers work very hard with their employees to create a family atmosphere.  The regulations get in the way of much of this.  Every time the government mandates a benefit that many people are already doing for their employees, they add cumbersome requirements, and many pages of fines and penalties if you do not do it exactly right.  In a more practical world, doing your best should count for something, but not according to our Legislators.  So, every time they add a benefit, many employers remove another benefit so they can afford the one the government wants.  There is only one pot of money, but Legislators think employers can just invent more money like Congress does and it just isn’t the case.

If there is one takeaway from the recent Presidential elections is that middle-America and rural areas are tired of being ignored or shoved aside by our representatives.  If you don’t visit and really listen to their issues, you run the chance of being replaced.  Not all issues affecting business and employees can be handled by looking out the window in Los Angeles or Sacramento or Washington, D.C.  I hope they pay attention or 2018 could be a very turbulent year as well.

BUT THERE IS A RESPONSIBILITY OF THE OWNER\EMPLOYER AS WELL:

In 1999, in California, Governor Gray Davis signed the labor bills establishing daily as well as weekly overtime rules.  It also established a 30 minute employee meal with stern regulations.  Here we are 17 years later and there are still a number of employers who ignore, or do not know of these laws, or simply choose to go their own way.  This affects all of us.  When an employer does not follow the simple laws and refuses to do things like installing a time clock and paying people for the hours they work, they give every employer a black eye and give every Legislator an easy excuse to add new laws and regulations.  In other words, a few stubborn bad employers are making business hard for everyone else.  Instead of just complaining about the State or the Federal government, if  you know an employer that is not following the law, talk to them and let them know they are a big part of the problem.

The easiest way to pay people with the least amount of work on your part is to pay people exactly what they work based on a time clock.  Anything else you are doing is why we keep getting more “wage theft” headlines.  Let’s all resolve in 2017 to pay people for what they work and hold them accountable for the job.  Spend your hard time enforcing your rules instead of working hard to explain a poor payroll practice.  With minimum wages going up and other regulations coming to many States, 2017 is a good year to get on board the right train.  HR Mobile Services, Inc. is there to help you do it, but you have to follow the program to make it successful.

Have a Happy and Prosperous New Year!!!

ALL CALIF. EMPLOYERS BE READY FOR NEW PROP. 65 REQUIREMENTS IN 2018

California has been dealing with Prop. 65 (notice of possible Cancer causing items in use).  Well, recently we were hoping that this bill, which has been a boon to California lawyers, would be pruned and made more practical.  Instead, they have made it much tougher for almost every employer in California beginning in 2018.  There are over 800 chemicals on the present list.  Here is the list:  https://oehha.ca.gov/proposition-65/proposition-65-list .   Beginning in 2018, the old sign stating that “chemicals known to cause cancer” that  you see everywhere from every restaurant and hospital to gas stations to ball parks, will now require a sign that lists all chemicals in use at any facility.  That means barber shops to dairy farms will need to have this list posted in plain view for all people entering the property.

On its face this is absurd.  This is another example of politicians trying to show people how they are protecting us, when the reality is that no one pays attention or reads it.  As proof, how many people really read the required postings by every employer near their time clock or break room?  It is another venue for lawyers to file lawsuits against employers while not protecting anyone.

You can read a very good article regarding this story from  Joseph Perrone in the Fresno Bee.   Here is the link: https://www.fresnobee.com/opinion/opn-columns-blogs/article114970193.html

While we have time, the recent elections do not give us much hope that any sanity will return to the California State Legislature.  However, with people starting to campaign for the Governor position in 2  years, I would suggest that anytime you are confronted by any of these aspiring politicians, you ask them their stance on this issue and why.  It may provide some attention and action to make this proposition more practical.

 

CALIFORNIA AND ARIZONA EMPLOYERS SHARE RISKS OF NEW MARIJUANA INITIATIVES

The article below is from the Arizona Chamber of Commerce in its entirety followed by an article from the Orange County Register in California.  The exact same arguments can be made for California.  There is almost no doubt that this will pass in California but the supporters refuse to allow questions on their websites and will not address the legalities that will face employers.

Factor into all of this is the new drug testing (or non-testing) standard set by OSHA on a Federal level and employers are in a real bind if they try to keep drugs out of the workplace.  Under Federal OSHA you cannot drug test post-injury unless the use of drugs or alcohol would be considered the proximate cause of the accident AND the test must be able to establish that the employee was under the influence at the time of the accident.  Since there is no legal test for THC levels, you will not be able to test for or fire someone just because THC from marijuana is in their body.  This is a major problem that no one wants to address until attorney’s get ahold of it in a big trial and sue the owner because they were aware the employee had marijuana in their system and did not remove them from operating equipment.  Just wait!

Here is the story.  In California, it is Proposition 64.  Below the Arizona comments is a article from the Orange County Register in California regarding their proposition:

__________________________________________________________________________________________________________

The Arizona Chamber of Commerce and Industry and No on 205 this Thursday, October 27 at 2 PM are hosting a tele-town hall for employers who are concerned about the effect of legalized marijuana in their workplace. Call 1-877-229-8493, PIN 115868.  

The proposed Regulation and Taxation of Marijuana Act, otherwise known as Proposition 205, would massively affect existing Arizona law. Put simply, Proposition 205 would negatively impact Arizona law and policy in a variety of significant ways, including how job creators manage their workforce and workplace.

The Arizona Chamber of Commerce and Industry is proud to spearhead efforts to defeat this job-killing initiative. In Proposition 205’s 20 pages of conflicting and contradictory legalese, there are two key provisions that are particularly problematic for employers: proposed A.R.S. §§ 36-2860(A) and 36-2860(B). These two provisions, and Proposition 205 in general, are poised to wreak havoc on Arizona in a manner not disclosed in the initiative or acknowledged by its out-of-state marijuana industry backers.

The aforementioned provisions would upend Arizona’s employment laws in the following ways:

  • It would rob employers of the ability to take disciplinary action against employees who test positivefor marijuana, despite having a statutorily approved drug-testing policy. Want a drug-free workplace? Proposition 205 makes that more difficult.
  • It would create an environment for an avalanche of wrongful termination lawsuitsfor employers that fire employees for using marijuana on the theory that the termination was in violation of Proposition 205.
  • It would tangle Arizona businesses in a web of regulations that conflict with federal lawregarding safe workplaces, safe roads and transport, and safe foods. Does your business have federal contracts? Under Proposition 205, you’ll be forced to navigate two conflicting sets of laws.

Proposition 205 would be a trial lawyer’s dream. Compounded with the clashes above, these provisions would create conflict within laws related to various Arizona benefit programs, too. For example:

  • Proposition 205 would create a situation where, under Arizona’s welfare laws, marijuana would be considered both legal and illegal, resulting in costly litigation.
  • Proposition 205 would also create a situation where Arizona’s unemployment insurance laws would require a person to be denied benefits, yet it would also prohibit such denial, again resulting in costly litigation.
  • Lastly, it would be virtually impossible for Arizona employers to receive a statutory discount on workers’ compensation premiums for having a zero-tolerance drug-free workplace.

Propostion 205 is a mess. Its passage would harm employers’ ability to keep marijuana out of their workplace, whille exposing them to expensive lawsuits. Arizona job creators who are concerned about our state’s ability to continue to attract and grow jobs should vote no on Proposition 205.

WHAT:           Tele-town hall on Proposition 205’s effect on employers

WHEN:           Thursday, October 27 at 2 PM

HOW:              Call 1-877-229-8493; enter 115868 when prompted for a PIN

Glenn Hamer is the president and CEO of the Arizona Chamber of Commerce and Industry

__________________________________________________________________________________________________________________________

 

Why Prop 64 is about more than just smoking marijuana

By BROOKE EDWARDS STAGGS

2016-10-24 14:33:08

Proposition 64, on its surface, poses a simple question: Should people be free to smoke pot in California?

But the 62-page initiative on the Nov. 8 ballot asks voters to determine much more than that.

It asks them to decide how much cannabis Californians should be allowed to carry, whether they should be able to grow it in their homes and what, if any, penalties consumers should face going forward.

RELATED: Prop 64 to legalize marijuana: Who’s backing it, who’s fighting it and why?

It also asks them to weigh the future of a multibillion-dollar industry, including everything from how marijuana businesses should be taxed to what warning labels should appear on edible products.

Depending on who you ask, either the devil or the redemption is in those details.

Supporters call Prop. 64 the “gold standard” of marijuana legalization, touting strict safeguards that build on lessons learned by the four states that already allow recreational pot.

Some opponents say the measure doesn’t go far enough to keep kids and roadways safe, while detractors on the other end of the spectrum say the measure includes too many regulations to be true “legalization.”

With the vote about two weeks away, here’s a closer look at what Prop. 64 means for California.

PERSONAL RIGHTS

Prop. 64 would allow California residents and visitors 21 and older to buy, carry and give away up to an ounce of marijuana. That’s enough to roll perhaps 40 average-sized joints.

They also could possess up to 8 grams of concentrated cannabis, such as waxes or oils that can be vaporized or mixed into foods.

Under the measure, residents could grow as many as six pot plants at home and keep what they harvest. But the plants couldn’t be visible to the public. And local governments could regulate how they’re grown, including requiring that it be done indoors.

No one could consume recreational pot in public. Consumption would be allowed only on private property or in “cannabis cafes” licensed strictly for marijuana use.

The initiative would uphold laws against driving while impaired or having an open container of marijuana in a car. But it wouldn’t establish a threshold, as Colorado and Washington did, for how much THC (the compound in pot that makes users high) drivers could legally have in their blood.

Prop. 64 backers say that’s because blood alcohol content isn’t a good measure for marijuana impairment, since pot stays in the system long after its mind-altering effects have worn off. So the initiative would direct tax revenue to law enforcement and researchers to develop better tests for drugged driving.

The measure would protect employer rather than employee rights, allowing companies to hire and fire based on drug tests.

But the penalties for most marijuana-related crimes, which studies show disproportionately affect minorities, would be lower if the measure passes. Adults convicted of possession with intent to sell would get six months in jail rather than two years in prison, for example, while teens caught with the drug would get counseling and community service instead of criminal records. And those changes would be retroactive, meaning marijuana offenders could be released from jail or have their records expunged if the measure passes.

Prop. 64 also would uphold existing rights for medical marijuana patients, allowing them to still grow more pot than recreational consumers and access medical marijuana at 18 years old. They would face some additional taxes, though they’d also gain privacy and child custody protections.

If the measure is approved, all of these personal rights would take effect the day after the election, on Nov. 9.

BUSINESS PLAN

It would take a bit longer for the taxed and regulated recreational marijuana industry promised by Prop. 64 to take shape.

Shops would start to open on or before Jan. 1, 2018.

That’s the date California officials expect to start issuing licenses to all medical marijuana growers, manufacturers and sellers under industry regulations signed into law in 2015.

Prop. 64 would largely extend the same regulatory framework to recreational marijuana production, with requirements for licensing, testing, child-resistant packaging, limited advertising and tracking pot from seed to sale.

The initiative would establish a 15 percent sales tax, plus a tax by weight for growers. That would be on top of taxes local governments tack on and regular state sales tax, though medical marijuana users would be exempt from the latter.

Small- and medium-sized businesses would get an edge coming out of the gate, since Prop. 64 bans large-scale cultivation for the first five years. But after Jan. 1, 2023, there would be no state cap on the size of marijuana farms.

Cities and counties would still have authority to regulate, tax or ban marijuana-related businesses in their borders. Many have already started passing laws in anticipation of Prop. 64, with 62 local measures related to marijuana on the ballot Nov. 8.

THE OUTLOOK

Nearly every poll on Prop. 64 suggests it will pass – though perhaps narrowly. Recent polls have ranged from 51 percent to 71 percent support, with many averaging around 60 percent.

But advertising to defeat Prop. 64 is being aired. And in California the popularity of measures often shifts in the final days before an election.

If the measure becomes law, industry experts predict that California’s legal weed market will reach $6.5 billion by 2020 and potentially spur legalization throughout the country.

The Legislative Analyst’s Office anticipates that tax revenue from the measure could top $1 billion annually, with the justice system potentially saving tens of millions more on enforcement costs.

The revenue won’t go to state or local general funds. Instead, it will be set aside to fund youth prevention programs, marijuana research, better drugged driving tests, environmental remediation and grants to impacted communities.

The impact legal marijuana has on highway safety, teen use and crime isn’t yet clear. There are conflicting reports coming out of states such as Colorado and Washington, which approved legal pot in 2012. And experts say they need more years of reliable data before they have definitive answers.

More research is also needed on how recreational marijuana use ultimately affects health and achievement, with particular concern over today’s increasingly potent pot. But studies increasingly suggest that, while marijuana consumption may pose some risks for young people and the mentally ill, responsible use appears to have little impact on healthy adults.

With valid concerns on both sides of the issue, Dr. Igor Grant, who heads up the Center for Medical Cannabis Research at UC San Diego, said it’ll be up to voters to weigh the impacts of prohibition against potential impacts of legalization.

“There’s a cost-benefit analysis that voters have to make,” he said.

Contact the writer: 714-796-7963 or bstaggs@ocregister.comTwitter: @JournoBrooke

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GOV. BROWN SIGNS INDOOR HEAT ILLNESS MANDATE

Yes, you read that correctly.  The State of California feels that people working in-doors deserve the same protections from Heat Illness training as outdoor workers.  Now, on some levels this makes sense.  For instance, a worker in a factory could be exposed to severe heat conditions. Other similar places could be electrical generation areas, greenhouses, building construction, attic insulation installers, electricians, plumbers, etc.  So, this could have some practical applications in the workplace.

That being said, it is a very poorly written bill, SB 1167 (Mendoza; D-Artesia) , which gives almost no direction as to the definition of an “indoor occupation” that would be covered under this act.  In fact, the entire project is left almost completely to Cal\OSHA to write and implement this program.  They have to begin the rule making process in 2017 to submit a proposed rule to the Cal/OSHA Standards Board by January 1, 2019.

This is a stakeholder driven process, so it is very important that your industry is part of the conversation.  If you have an advocacy group, get them involved early to state your position before the rules are written.  It is almost impossible to fight or have them re-written later.

 

Don’t Touch That Cellphone!!

Californians!  Because our state government feels it must protect everything you do, the governor has signed AB 1785 written by (and you are going to love the name…) Assemblyman Bill Quirk.  It is known as the “Distracted Driving” update.  Originally passed a few years back, the old law said you should not text while driving and it attached a fine if you are caught.  This makes sense, because we have all driven behind some numbskull who is not paying attention to the traffic and playing with their phone.

So, now we have an update to that law and you should bring this to the attention of every employee you have that uses a company vehicle or drives on company business.  Basically, the new law says that if you touch your phone or other electrical device FOR ANY REASON while driving, it is a violation and subject to a ticket and fine.  Specifically, you can mount a phone or GPS device on the windshield and you are allowed to do a “one-swipe” gesture which allows for the use of GPS but does not allow texting or other items.

These changes were proposed to meet the 2014 appeals court decision to move the emphasis from the action (calling or texting) to the devices.

We are not posting this to cause a discussion on whether a change like this will eliminate accidents, but we feel a technological change would be better.  They  have software that can disable cellphone use while driving, but refuse to implement it.  So, please inform your employees so that they and you are not subject to fines or tickets.

OSHA FINALIZES RULES FOR DRUG TESTING AND SAFETY INCENTIVES (UPDATED SEPT 1, 2016)

 

 Edit Sept 1, 2016…The information below has been adjusted since our posting and the new rules go into effect as of November 1, 2016 instead of August 10.

Due to the major changes listed below, HR Mobile Services, Inc. will be adjusting all of our Drug and Substance Abuse Policies to better reflect these changes.

This is from the rewriting of (29 CFR 1904.35(b)(1)(I) and subsequent commentary letter issued by OSHA in May, 2016.

Back in 2006, OSHA issued a paper that took at dim view of Safety incentive programs.  The general idea was that if there were no injuries reported for a month or a quarter, there would be a drawing for prizes such as a TV or gift cards.  While this was done with good intentions that employees would work more carefully so that everyone would have a chance to win valuable prizes, it also had an impact (intended or not) on the reporting of injuries.  The letter went on to point out that an employee could be put under increased peer pressure not to report an injury and that was not acceptable.  The new rule specifically prohibits employers from using incentive programs that discourage injury reporting.  THEY ARE NOT BANNING INCENTIVE PROGRAMS!  Programs could include:

  • –   Providing t-shirts to workers serving on safety and health committees or to celebrate a goal being reached
  • –   offering modest rewards for suggesting ways to strengthen safety and health
  • –   throwing a company or department wide recognition party after the successful completion of safety training

The final ruling goes into effect on Nov. 1, 2016.  The final rule explicitly incorporates “the existing prohibition on retaliating against employees for reporting work- related injuries or illnesses that is already imposed on employers”.  You can bet that lawyers will be quoting this and inquiring into incentive programs when filing a 132-a or EEOC discrimination case.  BE CAREFUL.  If you are not sure of your program, give us a call.

ALSO………..

OSHA has determined that blanket application of a company post-injury drug test policy may not be legal because it may deter an employee from reporting an injury.   Employers are prohibited from using the drug testing as a threat to employees who may want to report and be treated for an injury.

Where this can happen, and you need to address this with your supervisors, is when the supervisor says to the employee, “you can be treated at the clinic, but you know they are going to test you for drugs and alcohol and if they find anything you will be fired”.  That is a threat and is illegal.  You must make sure your people know that comments like this expose your company to major fines.

Further, drug testing after an accident is only allowed when 2 situations are present.  The first is that the injury MUST be associated with an action on the part of the employee that could have been connected to a drug or alcohol impairment.  That is to say, if an employee is stung by a bee, there is no connection to unusual behavior due to being under the influence and so there is no reason to apply a drug and alcohol screening test.  If the employee was swinging a stick at a bee hive and got stung, there may be a good reason to have them tested.  If a tree branch falls on an employee, no test.  If an employee is climbing a tree for fun during lunch, maybe there is a reason for testing.  If an employee has a back strain or a cut due to a missing guard on a piece of machinery, there is not a good reason to drug test.

The second part of this is that the testing should only be done when it can accurately identify impairment caused by drug use.

So, you need to be reasonable in your application of testing employees and you cannot use it as a threat to not report.  You still need to follow DOT rules because they may override some of these situations.  All DOT accidents require post-accident testing and in most cases would meet the standard above in either case.