October 2018

Undermining Federal Anti-Retaliation Enforcement

There is a lot of news about the Trump Administration rolling back regulations, particularly those issued during the Obama Administration. What gets less news is their much simpler and quicker tactic: effectively eliminating regulations by refusing to enforce them.

Earlier this month, federal OSHA appeared to be doing just that when it issued interpretive guidance to regional offices and state OSHA plans regarding enforcement of the anti-retaliation provisions of OSHA’s embattled 2016 “Electronic Recordkeeping Rule.”

The 2016 rule requires employers to have injury reporting procedures that are “reasonable” for employees, and it prohibits policies that would deter or discourage employees from reporting injuries. The rule addresses two common employer practices that are known to discourage employees from reporting workplace injuries: so-called safety incentive programs and post-accident drug testing.

Safety incentive programs typically reward employees as a group with prizes or cash bonuses based on workplace injury rates. The 2016 rule prohibits “no-fault” safety incentive programs in which prizes are withheld when an injury occurs regardless of the circumstances or the role of the employee in the injury. Such programs inherently discourage injury reporting by creating peer pressure to not report injuries that could impact coworkers receiving benefits.

The rule also effectively prohibited the employer practices of conducting post-injury drug testing without a reasonable basis for concluding that drugs had a role in the incident, drug testing targeted at workers who were injured but not others involved in an incident, and drug tests that do not measure impairment. These practices are also used to punish employees and discourage reporting.

OSHA’s October 11 Memo does not overturn the rule – OSHA can’t do that without new rulemaking – but it is an attempt to undermine the heart of these provisions by limiting enforcement to circumstances where it can be proven the employer intended to discourage injury reporting. The memo permits these programs unless “the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.” The memo goes on to give employers a roadmap for avoiding citations by adding superficial changes to their incentive and drug testing programs.

I wish I could hold out California as a shining counter-example, but it has unfortunately done virtually nothing to even adopt the 2016 rule, despite its legal obligation to do so.

The 2016 rule recognized the reality that these policies can deter injury reporting and provide opportunities to punish workers for reporting injuries. The October 11 memo does much to undo that recognition of how these programs work in the real world.

Stay Tuned,

Doug Parker

Executive Director

Worker Health & Safety at the Polls

California: No on Prop 11

Proposition 11, Ambulance Workers On-Call During Breaks, was introduced and funded by American Medical Response, the largest medical transportation firm in California. If it passes, EMTs and paramedics will be required to remain on-call during rest breaks without the additional compensation currently required by California law, and the continuous demanding nature of their work will place them at risk of increased stress; affecting their performance and safety. It would also free American Medical Response of its current liabilities for failing to comply with wage and hour laws.

Prop 11 is not the solution for ensuring both public safety and fair treatment for privately employed emergency responders. Worksafe endorses a legislative or collective bargaining solution to the issues raised by industry, not a free pass handed to them by a misleading referendum vote. Labor organizations such as the United EMS Workers, California Labor Federation, California Teachers Association, AFSCME, and the California Professional Firefighters oppose Prop 11. Worksafe urges a NO vote.

Oakland: Yes on Measure Z

Measure Z, Hotel Employee Minimum Wage and Panic Buttons, a local measure of the City of Oakland, seeks to improve working conditions for the city’s hotel housekeepers. Supported by UNITE HERE, the labor union representing thousands of California hotel housekeepers, and EBASE, Measure Z seeks to increase the minimum wage for hotel employees from $13.23 to $15 with healthcare benefits or $20 without healthcare benefits while also establishing important workplace protections such as the “panic buttons” for housekeepers who may experience violence at work. Worksafe urges a YES vote.

Worksafe in the Classroom

This fall Worksafe tapped into the back-to-school spirit with a pair of guest lectures at Bay Area colleges.

Worksafe Senior Staff Attorney Nicole Marquez traveled to Cal State East Bay to present on "Occupational Health and Safety Law, Policy, and Worker Campaigns." She was invited by Xochitl A. Lopez, an associate attorney with Weinberg, Roger & Rosenfeld, who teaches Labor Policy and Law in the political science department.

Worksafe Executive Director Doug Parker made a guest appearance at UC Berkeley in Global Occupational Health, a graduate-level overview course of globalization, work, and health taught by Garrett Brown. Doug talked with students about "Underground Coal Mining Health and Safety in the US and China," drawing upon his experience at the Mine Health and Safety Administration.

Thanks to Xochitl and Garrett for inviting us to your classrooms!

Cheers, Debra!

Since 2010, Worksafe has been honored to have Debra Chaplan on our board of directors. Though her formal board tenure ended this fall, she'll always be a highly valued member of the Worksafe crew. Thanks so much for your support and leadership, Debra!

How would you describe your Worksafe board experience? "I enjoyed serving on the Worksafe Board because it is a group of lovely, dedicated, smart people who approach safety and health from different vantage points, but who all genuinely care about the issue and strengthening the organization."

What is a movement moment that you loved participating in? "Launching and building the Women Build California and the Nation conferences for women in the trades. It started in 2002 as a conference for about 200 California tradeswomen; it became a national event that grew to nearly 1,100 participants in 2015. Women who work in the trades often find that they're the only one on a worksite, so bringing such a large group of tradeswomen together in one room lets them know that they're not alone. And at each conference, we made sure to hold workshops on working safely, which can be a particular a challenge for women because PPE often isn't made for their size or build. One year, the conference fell on Workers Memorial Day, and we put on an amazing commemorative event highlighting women who had died on the job."

See You @ APHA?

It's almost November which means the American Public Health Association (APHA) Annual Meeting and Expo is right around the corner. Several Worksafe staff and board members will be there hanging with our friends in the Occupational Health and Safety Section, so come say hi if you're around! There are lots of great sessions this year; here are a few to add to your list:

Collective Efforts Win Cal/OSHA Injury Prevention Standard for Hotel Housekeepers (11/13 at 8AM). Worksafe's Nicole Marquez will be presenting “Access to justice and health equity: Broad coalition building a cornerstone to the success of California’s New Hotel Housekeeping Standard.”

The Promise and Perils of Using TSCA to Advance Health Equity Now (11/13 at 10:30AM). Board member Dr. Bob Harrison (UCSF) will be presenting "Case study of Methylene Chloride."
Debunking the Myth: Immigrants as a Public Health Threat? (11/13 at 3PM). Board member Dr. Linda Delp (UCLA LOSH) will be presenting “Work as a social determinant of health inequity among immigrant workers.”
Disaster Response and Climate Change (11/13 at 5PM). Board member Suzanne Teran, MPH (UC Berkeley LOHP) will be presenting “If you’re not at the table, you’re on the menu: Labor and climate change”

Can’t make it to APHA this year? We’ve got you covered! Follow @WorksafeCA on Twitter for on the ground updates from San Diego.

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