OSHA Update: Electronic Reporting & Drug Testing
Now is the Time to Ensure that you Handle Injury Reports Correctly

            On May 12, 2016, the Occupational Safety and Health Administration (OSHA) published its final rule intended to improve tracking of workplace injuries and illnesses. The rule changes the manner in which workplace injuries and illnesses are reported – mandating electronic reporting – and authorizes OSHA to cite an employer for retaliation in the absence of an employee complaint or if OSHA finds an employer program that deters or discourages reporting of workplace injuries or illnesses through the threat of retaliation, including post-incident drug testing. While the final rule takes effect on January 1, 2017, the provisions relating to reporting and anti-retaliation become effective August 10, 2016.

 

Electronic Reporting

·         Employers with 250 or more employees required to keep Part 1904 records must submit Forms 300, 300A, and 301 electronically by March 2nd each year beginning in 2019.

·         Employers with 20-249 employees designated in Appendix A of 1904(E) must electronically submit form 300A.

·         The electronic reporting requirement will be phased in over three years with interim submission deadlines of July 1 in 2017-18, so employers will not have to change reporting procedures immediately or all at once.

·         The electronic reporting requirement does not alter an employer’s existing obligation to complete and retain injury and illness records.

 

OSHA Anti-Retaliation Enforcement

·         The final rule adds paragraph (b)(1)(iv) to §1904.35 which confers OSHA with independent authority to cite employers for retaliating against employees for reporting work-related injuries or illnesses without an employee complaint.

o   Employees already have the ability to file a complaint with OSHA against employers for retaliation and final rule continues to authorize employee complaints.

o   While OSHA maintains the additional authority does not alter employers’ obligations, but merely provides without an additional enforcement tool to prohibit retaliation, OSHA’s commentary clearly contemplates a much more active agency role in prohibiting discouraging reporting or discriminating against employees who report workplace injuries or illnesses.

o   The amendment to §1904.35 is very likely to increase agency action and litigation with regard to workplace safety programs.

·         The final rule also requires certain employers to electronically submit injury and illness data (already required on OSHA forms) to assist in enforcement and which may be published on the OSHA website.

·         OSHA’s commentary notes incentive programs that reward employees for not suffering workplace injuries or illnesses can deter reporting rather than encourage safety; instead, OSHA encourages employers to use programs that encourage safety without rewarding low reporting numbers.

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·         This provision is effective August 10, 2016.

 

Post-Incident Drug Testing

·         The final rule contains no reference or provision concerning drug testing. OSHA commentary on the final rule, however, clearly indicates that the agency views post-accident testing as potentially retaliatory and likely to limit employee injury reports.

·         OSHA’s lengthy commentary on the matter of post-incident drug testing, or the threat of drug testing, as a retaliatory tool and form of adverse action will likely produce confusion for employers, is inconsistent with many industry standards, and almost certainly lead to increased litigation.

·         The commentary suggests that post-incident drug testing must be limited to situations where employee drug use is likely to have contributed to the incident, and the testing must be able to accurately identify the impairment caused by the suspected drug use – meaning a reasonable possibility that drug use was a contributing factor to the injury or illness.

o   Employers do not have to specifically suspect drug use, but drug use must be possible contributing factor.

o   The commentary includes simplistic examples of unreasonable testing for injuries that could not have resulted from drug use, such as testing employees who report repetitive strain injuries or a bee sting, as circumstances which could lead to action against an employer.

 

Drug Testing, DOT Regulations, and Workers’ Compensation

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·         Any drug testing required under state or federal laws, such as workers’ compensation statutes or DOT Regulations for CDL holders, cannot be retaliatory by definition and thus will not violate the final rule.

·         §1904.35 (b)(1)(iv) and OSHA’s commentary concerning drug testing downplay any changes to employers’ post-incident mandatory drug testing procedures required under workers’ compensation and other laws; the commentary, however, leaves a significant question with regard to employer policies, often industry standards or best practices, that are not required by law.

 

 

Ensuring Proper Employee Reporting of Workplace Injuries and Illnesses

·         Employers are required to inform employees that they have the right to report workplace injuries and illnesses without fear of retaliation by employers.

·         Employers may meet the requirement by posting the OSHA "It's The Law" worker rights poster published after April 2015, available at: http://www.osha.gov/Publications/poster.html

·         Timeliness of Reporting

o   Employers can require employees to report workplace injuries and illnesses within certain amounts of time.

o   However, employers must account for injuries that build up over time and might not be discovered by employees until after the date to report them has passed.

 

Now is the Time to Ensure that You Handle Injury Reports Correctly

·         If you know or think that you are an employer that will have to comply with the new electronic reporting requirements, you will need to comply with the three-year schedule.

·         Ensure that your policies are not deterring reporting by rewarding low numbers of injuries or accidents

·         Review your post-incident drug testing policies to ensure compliance with the new regulations

 

 

Disclaimer and warning: This information was published by McAnany, Van Cleave & Phillips, P.A., and is to be used only for general informational purposes and should not be construed as legal advice or legal opinion on any specific facts or circumstances.  This is not inclusive of all exceptions and requirements which may apply to any individual claim.  It is imperative to promptly obtain legal advice to determine the rights, obligations and options of a specific situation.