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Scopelitis L & E News: November 2018

by A. Jack Finklea, James H. Hanson, Sara L. Pettinger, David D. Robinson, Donald J. Vogel

Nov 7, 2018


A Note About OSHA and Safety Compliance

The majority of transportation industry employers recognize the importance of a safe workplace and strive to promote a culture of safety through various practices and incentives. The Occupational Safety and Health Administration (“OSHA”) has recently provided guidance for safety-minded companies in the form of advice as well as citations issued. The guidance may not be all-encompassing, but it can nevertheless provide helpful assistance in various areas of an overall commitment to safety.

Lesson 1: OSHA has not abandoned jurisdiction over transportation industry employers.
Although it is true that OSHA generally refrains from exercising jurisdiction where the U.S. Department of Transportation would also have jurisdiction (e.g., highway safety), OSHA will enforce its regulations at various facilities, including terminals, warehouses, and even portions of rail yards. Transportation industry employers should therefore be careful to critically analyze whether OSHA regulations apply to a particular work area or circumstance.

Lesson 2: Training could provide the difference not only in preventing an injury, but also in avoiding or limiting a citation where training is required or even in the event an injury occurs.
OSHA last month investigated an employer following an injury and issued a citation identifying, in part, a lack of training. OSHA fined the employer over $100,000. In addition, OSHA mandates training on particular topics such as fall protection and dock plate operation. Importantly, a failure to engage in the proper training of employees can itself lead to a citation even if no injury has occurred.

Lesson 3: Safety incentive programs and drug testing are good things, provided they do not unnecessarily discourage injury reporting.
Last month, OSHA issued guidance to clarify its position on workplace safety programs and post-incident drug testing. Specifically, OSHA confirmed that such safety programs and drug testing are not prohibited but that they should contain safeguards to avoid having the retaliatory effect of discouraging injury reporting.

Safety incentive programs that reward employees for accident-free periods naturally encourage safe practices. However, such programs can also discourage employees from reporting an injury, thereby preserving eligibility for a safety bonus. OSHA’s guidance attempts to bridge the gap by encouraging such an incentive program to also reward employees for identifying unsafe conditions, training employees to expressly reinforce reporting rights and responsibilities in an atmosphere free of retaliation, and providing a mechanism for measuring employee willingness to report injuries.

Similarly, a post-incident drug test that involves only the injured employee may discourage an employee from reporting the injury where the employee knows, regardless of actual fault for the accident, he or she will be discharged for failing the drug test. OSHA’s guidance notes that post-incident drug testing should involve all persons whose conduct could have contributed to the incident, not just the employee who reports an injury.

OSHA jurisdiction in the transportation industry can present complex issues, as can training requirements and anti-retaliation measures. For more information, please contact Jack Finklea, David Robinson, Don Vogel, or Sara Pettinger.



Scopelitis practice area newsletters are intended as reports to our clients and friends on developments affecting the transportation industry. The published material does not constitute an exhaustive legal study and should not be regarded or relied upon as individual legal advice or opinion.

© Scopelitis, Garvin, Light, Hanson & Feary, P.C. 2018. All rights reserved.