OSHA changes affect post-accident drug testing, workplace injury reporting and more

October 6, 2016|Kailee Wahler

The Occupational Safety and Health Administration (OSHA) published a new final rule on May 12, 2016. The provisions published include a new anti-discrimination and anti-retaliation rule. This new rule prohibits mandatory post-accident drug testing because OSHA interprets such testing as discriminating against employees unless:

  1. Drug use was a likely factor in the accident and 
  2. The test can accurately identify the impairment caused by use of the drug. 

OSHA also interprets incentive programs as retaliatory if they offer benefits to employees for not reporting injuries and illnesses. Although long-standing rules prohibited discharging or otherwise discriminating against an employee or group of employees if anyone reported a workplace injury or illness, until now OSHA had been prohibited from acting under those rules unless an employee filed a complaint within 30 days of the retaliation.

Employers are required to: 

  1. Have the necessary policies in place
  2. Establish an employee reporting procedure that does not discourage reporting work-related injuries and illnesses and 
  3. Inform employees of their right to report such information without fear of retaliation.

Please note that some industries have additional requirements regarding drug tests, and those requirements should still be followed.

What has changed with the electronic reporting requirement?

The new rule requires employers to electronically report workplace injury and illness data starting January 1, 2017. Current regulations already require that you keep records of this information, so the new requirement should not be overly burdensome. However, the new rule also includes other provisions with earlier compliance dates.

According to the OSHA website, the main purpose of the new rule is to require electronic reporting of workplace injuries and illnesses, which will facilitate analysis of the public disclosure that OSHA plans to post on its website.

The purpose of public disclosure is to “encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public,” as stated on osha.gov. “The amount of data submitted will vary depending on the size of company and type of industry.” Reading between the lines, this appears to be an effort to prompt employers that report multiple employee injuries into improving compliance.

OSHA specifies that the information posted on its website will be establishment-specific, but will not include information that could be used to identify individual employees. It defines an establishment as “a single physical location where business is conducted or where services or industrial operations are performed. A firm may be comprised of one or more establishments.”

Having employer data in electronic format “will enable OSHA to use its enforcement and compliance assistance resources more efficiently.” Presumably, this means compliance officers will be able to conduct investigations and issue citations more quickly.

This final rule revises OSHA's regulation on Recording and Reporting Occupational Injuries and Illnesses. Substantially identical rules apply to State Plan States. For more information, visit OSHA’s Frequently-Asked Questions.

The new electronic submission requirement will be phased in over two years

Although the final rule officially becomes effective January 1, 2017, phase-in rules give establishments with 250 or more employees until July 1, 2017 to electronically submit the information from the 2016 Form 300 they file with OSHA, and until July 1, 2018 for all 2017 Forms (300A, 300, and 301). Every year thereafter, the due date will be March 2.

The same phase-in schedule applies to information from Form 300A for establishments with 20 to 249 employees in certain high-risk industries.

These provisions were effective August 10, 2016, but OSHA has again delayed their enforcement, this time  from November 1 to December 1, 2016. The rule specifies that posting the current OSHA Worker Rights Poster is one way to inform employees of their new rights. Visit the OSHA website for instructions on how to get a copy of the poster.

For more information or assistance, contact Kailee Wahler or any member of Schenck’s Human Resources Consulting team at 800-236-2246.

Kailee Wahler, human resources consultant with Schenck, builds relationships with clients and advises businesses on a wide variety of human resources matters. She provides one-on-one guidance and counsel, along with the ability to analyze and offer solutions to everyday HR challenges.