OSHA recently released its Final Rule (hereinafter, the “Rule”) on the electronic recording and submission of injury and illness records. The Rule has several important provisions of which employers need to be aware, as well as some potential ramifications to long-standing employer practices.
Basics of the Rule:
Here are the basic requirements under the new Rule:
OSHA is phasing in the requirements set forth above. All employers listed in the first two bullet points above are required to submit the information from their OSHA 300A forms beginning on July 1, 2017. Employers with 250 or more employees are required to begin submitting information from their OSHA 300, 300A, and 301 forms by July 1, 2018. Additional information regarding pertinent deadlines can be found at www.osha.gov.
OSHA will post the establishment-specific injury and illness data it collects on its public website (it will remove Personally Identifiable Health Information before doing so). There is no information regarding whether any context will be provided along with this information, i.e., how many employees are in the establishment, what sort of work is performed, what the safety record of the company is, etc. We will continue to monitor the situation and provide any updates when available.
Employers Must Have a “Reasonable Reporting Policy”:
Under the new Rule, employers are required to inform their employees of their right to report work-related injuries and illnesses, free from retaliation (employers can do so by posting OSHA’s Job Safety and Health – It’s the Law worker rights poster from April 2015 or later).
Employers must also have a “reasonable” reporting procedure for reporting injuries and illnesses that does not deter or discourage employees from reporting injuries or illnesses. The Rule uses the “reasonable person” standard to determine if an employer’s procedure is reasonable – if a reasonable person would be deterred from reporting an injury or illness, then the employer’s procedure will be found to be unreasonable. The comments to the Rule use the example of a policy that requires “immediate” reporting of injuries as a policy that may be unreasonable, particularly with respect to a situation involving a musculoskeletal injury that may develop gradually where the employee may not be aware, at least initially, that the injury is work-related.
Separate Retaliation Provision – 1904.35:
The new Rule provides a separate retaliation provision, in addition to Section 11(c) of the OSH Act, to protect employees against employers who retaliate against employees for reporting injuries and illnesses. Under 1904.35, OSHA can issue citations against employers if it believes the employers have retaliated against employees for reporting injuries and/or illnesses, regardless of whether those employees have filed a complaint under Section 11(c). The retaliation provision under 1904.35 also allows OSHA to order reinstatement of an employee and other equitable relief (but no punitive damages).
The New Rule May Affect Employers’ Post-Accident Drug-Testing Policies:
OSHA has made it clear that any policies that deter employees from reporting injuries and illnesses will be subject to closer scrutiny under the new Rule.[1] Blanket policies that require drug and/or alcohol testing after every work-related accident, without exception, would fall under this category. Indeed, as the comments to the Final Rule indicate:
Although drug testing of employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment, but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.
Given the comments in the Rule, it is advisable for employers to review their post-accident drug testing policies to determine if there are changes that could be made to the policies to make them individualized or situation-based versus a “blanket” policy. For example, it may make sense to continue conducting post-accident testing after all car accidents, falls, severe cuts, and amputations, but not after muscle strains, back sprains, and minor lacerations.
If you would like us to evaluate your drug-testing policies, or if you have any questions regarding OSHA’s new rule, please contact any member of Frantz Ward’s Labor and Employment Group.
[1] OSHA does concede that the one caveat to this is if an employer is required to conduct post-accident drug-testing due to workers’ compensation regulations or other state or federal regulations.