Two years ago, I discussed difficulties that could be caused by new OSHA regulations on post-accident drug testing. Here’s a link to that article: Conflicts Between Alabama Law and OSHA Drug Testing Rules. In that article, I noted that OSHA took the position that policies requiring “blanket post-injury drug testing policies deter proper reporting,” and are unreasonable. Last week, OSHA issued a “clarification” of its position, and alleviated many of the concerns noted in my original article. Here’s a link to the clarification: OSHA Clarification on Post-Incident Drug Testing. In contrast to 2016, OSHA now recognizes the importance of blanket post-injury drug testing:
The Department believes that many employers who implement safety incentive programs and/or conduct post-incident drug testing do so to promote workplace safety and health. In addition, evidence that the employer consistently enforces legitimate work rules (whether or not an injury or illness is reported) would demonstrate that the employer is serious about creating a culture of safety, not just the appearance of reducing rates. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if 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.
So, if an employer drug tests in order to penalize an employee, then the drug test is questionable and might result in sanctions from OSHA. Otherwise, post-accident drug testing policies are permissible. Indeed, OSHA specifically found that the following are “permissible”:
Random drug testing.
Drug testing unrelated to the reporting of a work-related injury or illness.
Drug testing under a state workers’ compensation law.
Drug testing under other federal law, such as a U.S. Department of Transportation rule.
Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.
OSHA’s clarification is very helpful for Alabama employers. OSHA’s position in 2016 conflicted with the Alabama Drug Free Workplace Act, which incentivizes employers to adopt post-accident testing policies. Now OSHA has changed course, and there is little danger to employers who adopt such policies.
Despite a creative argument from an employer, the Eleventh Circuit has found that employees are required to tie-off for fall protection when they are in an aerial lift. Empire Roofing Co. v. Occupational Safety and Health Review Comm., No. 16-17309, 2017 WL 4708162 (11th Cir. Oct. 19, 2017). In April 2013, an OSHA compliance officer inspected a work site where Empire Roofing was installing metal sheeting on the roof. The officer saw Empire’s foreman standing in the basket of an aerial lift without being tied off to the boom or basket. The foreman later admitted that he previously used the aerial lift to transport two employees to the roof. OSHA fined Empire Roofing for a violation of the OSHA act, and Empire Roofing challenged that fine.
An OSHA regulation required that “[a] body belt shall be worn and a lanyard attached to the boom or basket when working from an aerial lift.” 29 C.F.R. § 1926.453(b)(2)(v). Despite the fairly clear language of that regulation, Empire Roofing argued that its employees were not actually “working” from the lift. Instead, they were merely “riding” in the lift. Nevertheless, OSHA’s established interpretation of the term “working” found “[i]t is well established that employees are considered to be working any time they are performing work or work-related activities. Moving from one work location to another is considered work-related activity.” The Eleventh Circuit found that OSHA’s interpretation of that regulation was reasonable, and therefore deferred to OSHA.
Empire Roofing also tried to claim that it could not be responsible for the foreman’s “rogue conduct” in allowing the employees to ride in the aerial lift without tying off. The Eleventh Circuit found that Empire Roofing would not have been liable if the foreman was the sole person riding in the lift without tying off. But, because Empire Roofing gave the foreman control over other employees, and the foreman exposed those employees to danger, Empire Roofing was liable for transporting those employees in violation of the regulation.
OSHA’s Lockout/Tagout standard applies to all pieces of equipment that “function together as one system” when servicing or maintenance is performed on any part of that system. Secretary of Labor v. Action Electric Co., No. 16-15792, 2017 WL 2982977 (11th Cir. Jul. 13, 2017). The Lockout/Tagout (“LOTO”) standard is designed to protect workers performing maintenance on machines from releases of stored energy in the machines or unexpected activation of the machines.
In Action Electric, an apprentice employee was preparing to perform maintenance on fans that were part of a cooling bed system in a steel mill. Numerous pieces of equipment were part of that system. The fans were used to cool steel. Separately, certain counterweights would raise and lower the cooling bed. The fans and other equipment were in a 325 foot by 100 foot basement below the cooling bed.
The steel mill had a comprehensive set of policies requiring lockout/tagout of all the cooling bed’s equipment prior to any maintenance. Nevertheless, an Action leadman took his apprentice into the basement before lockout/tagout procedures were complete. While looking at the cooling fans, a counterweight was de-energized, and it fell, striking the apprentice.
OSHA issued a citation to Action arising from the death, and Action challenged that citation. Action was able to convince an Administrative Law Judge that the LOTO standard did not apply because the counterweight was not the same equipment being serviced by the Action employee, and the employees were not servicing the fans at the time, but merely viewing them.
During the ALJ proceedings, the Secretary of Labor (through attorneys) wrote briefs clarifying that the LOTO standard applied “to all pieces of equipment that ‘function together as one system’ when servicing or maintenance is performed on any part of that system.” The Eleventh Circuit found that the ALJ should have deferred to that interpretation of the LOTO standard, and reversed the ALJ’s decision.
The Eleventh Circuit has affirmed an OSHA fine against an employer, who failed to predict that its employee would be run-over by a dump truck. Pepper Contracting Svcs. v. OSHA, No. 14-0714, 2016 WL 3971718 (11th Cir. Jul. 25, 2016).
In Pepper, a construction company was re-paving a roadway. Part of the re-paving involved “milling” the road — a process by which old asphalt is removed from the road and deposited in a dump truck. If you’ve ever been stuck in a construction zone, you know this is a slow process — proceeding 10 feet per minute, or under 3 miles per hour. A foreman directed an employee, Alex Diaz, to clear a roadside obstruction approximately 90 feet in front of the milling activities. That duty required Diaz to stand in the road while working with a shovel. The foreman did not inform the milling crew that Diaz was working ahead of the project.
Two dump trucks were located in the area where the milling was occurring. One of the dump truck operators honked his horn at the other driver. The second driver was startled, accelerated his truck away from the milling operations, and struck Diaz who was 83 to 88 feet away.
This seems like a tragic, unpredictable accident. Nevertheless, OSHA fined Pepper Contracting for failing to furnish its employees with a place of employment free of recognized hazards that are likely to cause injury or death. The Eleventh Circuit affirmed that decision. The Court relied upon three critical facts: (1) the foreman left Diaz standing in the path of the milling convoy; (2) the foreman permitted the milling convoy to continue work even though Diaz was in the path; and, (3) the foreman failed to warn the dump truck drivers that Diaz was in their path.
Pepper demonstrates the difficulties faced by employers in industries using heavy equipment. A random, unpredictable series of events can lead to tragic consequences, and potential liability.