New OSHA Rules Address Post-Accident Drug Testing, Retaliation Claims, and Electronic Injury/Illness Reporting

stephen verotskyRecently, the Occupational Safety and Health Administration (OSHA) finalized new rules regarding recordkeeping/reporting and discrimination as it relates to drug testing employees following an injury. 81 Fed. Reg 29624.

The new anti-discrimination/retaliation rule goes into effect on August 10, 2016. There is a longer phase-in period for electronic submission of injury data.

The rule, adopted by federal OSHA, also applies to employers located in State Plan states, such as Oregon and Washington.

Electronic Submission Injury and Illness Data

The rule does not change the types of injuries or illnesses employers are already required to record. Covered employers already maintain records of their workplace injuries and illnesses. However, the majority of this data is not shared outside the workplace. The new rule changes how injury/illness information is communicated to OSHA and the general public.

Employers with 250 or more employees are required to submit information electronically from their 2016 Form 300A by July 1, 2017. By July 1, 2018, these employers are required to submit information from all 2017 forms (300A, 300, and 301). Beginning in 2019 and every year thereafter, the information must be submitted by March 2nd.

Employers with 20-249 employees operating in OSHA designated “high hazard industries” (i.e. department stores, nursing homes, construction) must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. As with larger employers, the information must be submitted by March 2nd, beginning in 2019 and every year thereafter.

The rule requires employers to submit all information from their logs, except information in the columns with employee names, employee addresses, health care professional names, and health care treatment facilities. The specifics of the new data disclosure portal are not explained in the regulations.

OSHA will release this employer injury and illness information publicly on its website, believing that its disclosure will encourage employers to improve workplace safety and health. Presumably the electronic data submission requirement will also help OSHA target employers based on the frequency of certain types of injuries.

Drug Testing and Employee Reporting Requirements

The rule also changes employer obligations for ensuring that employees report all work-related injuries and illnesses. All employers, regardless of size, must develop employee injury and illness reporting requirements that meet certain criteria.

  • Employers must also ensure that procedures for reporting work-related injuries and illnesses are reasonable and do not deter or discourage employees from reporting.
  • For example, OSHA contends employer policies requiring an employee to immediately report an injury or be disciplined may also be retaliatory. According to OSHA, a policy must allow for reporting within a reasonable time after the employee realized that he or she had suffered a work-related injury, rather than just immediately following the occurrence of an injury
  • OSHA also interprets the regulation broadly to prohibit any “adverse action that could well dissuade a reasonable employee from reporting a work-related injury or illness.” The rule prohibits any “blanket post-injury drug testing,” because OSHA believes such a policy deters proper reporting of injuries.

OSHA instructs employers to “limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” OSHA offers examples: It “would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.”

Retaliation

OSHA now takes the position of encouraging (allowing?) its compliance officers to issue citations to employers who discipline workers for reporting injuries and illnesses when there is insufficient evidence that any legitimate workplace safety rule has been violated. OSHA’s interpretation overturns the agency’s longstanding statutory framework for retaliation complaints in which specialized investigators determined whether discrimination had occurred. It is unclear whether OSHA compliance officers will be provided formal training in employment discrimination law.

If you have any questions about this alert, please contact me at sverotsky@sbhlegal.com