AGC Presses its Position on New OSHA Recordkeeping Requirements

Intensifying its effort to dissuade the U.S. Occupational Safety and Health Administration (OSHA) from interpreting its new recordkeeping
regulations to restrict drug testing or safety incentive programs, AGC of America presses for a formal
audience with the top OSHA official.

At the heart the controversy surrounding the new regulations are two provisions that merely state:

  • You must establish a reasonable procedure for employees to report work related injuries and illnesses promptly and accurately.                                                                                                                                                                                                                                             A procedure is not reasonable if it would deter or discourage areasonable employee from accurately reporting a workplace injury                                                                                                                                                                                                                                             or illness.” 29 C.F.R §1904.35(b)(1)(i).
  • “Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries                                                                                                                                                                                                                                              or illnesses.” 29 C.F.R §1904.35(b)(1)(iv).

The practical and legal problems with these broadly written provisions are many. At the moment, AGC
of America is focusing on two. Firstly, OSHA has threatened to interpret these provisions to prohibit
mandatory post-incident drug testing. Secondly, the agency has similarly threatened to construe them
to restrict safety incentive programs, specifically any programs that link their rewards to the number of
incidents reported to the employer.

AGC of America continues to oppose any effort to twist the new regulations to the point where they
have such effects. Indeed, they would threaten many positive and pro-active efforts to improve in the
construction industry’s safety record. AGC of America expressed these views in extensive comments on
the rule.

Fortunately, AGC of America still has several reasons to question whether OSHA will make good on its
threats. Nothing requires the agency to do so. The threats lie in an internally inconsistent commentary
that carry nothing close to the force of law. And, the agency is giving itself plenty of time to develop its
enforcement policies and other guidance. In fact, the agency has extended the effective date for the
relevant provisions from August 10 to November 1. While one case is already in court, it carefully
challenges those provisions only “to the extent” and “[i]f” OSHA restricts drug testing or safety incentive
programs.

Whether or not AGC of America meets with the OSHA head, the association will continue to
communicate its deep concern that the agency is heading in a very dangerous direction. As it does, the
association will also continue to assess its legal options. AGC of America certainly hopes that the
pending case is successful. At the same time, the association believes that jurisdictional issues will
dissipate and the association’s legal options will increase as the effective date approaches.

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