Claiming that it will “nudge” employers to focus on safety, the Occupational Safety and Health Administration (OSHA) has issued a final rule which updates the way it collects, and employers report, workplace injury and illness data. The new rule, which takes effect January 1, 2017, requires covered employers with 250 or more employees and employers in “high risk” industries with 20 or more employees to electronically submit injury and illness data to OSHA. Employers must count part-time, seasonal and temporary employees in determining whether they have the threshold number of employees. OSHA will post the injury and illness information on its website, although it states it will remove any personally identifiable information before posting.
OSHA acknowledges that it will use the data to target its investigation and enforcement of workplace hazards. It also states that making the data publicly available will allow “investors, job seekers, customers and the broader public” to review whether workplaces provide safe environments for employees. Once the reports are publicly available, employers should anticipate increased scrutiny by unions, employee advocacy groups and OSHA.
The final rule also requires employers to inform employees of their right to report workplace injuries and illnesses free from retaliation. Employers are required to establish a “reasonable procedure” for employees to report injuries and illnesses. With these changes, OSHA is specifically targeting post-incident drug testing and employee safety incentive programs.
OSHA warns against using post-incident drug testing to retaliate against employees or discourage reporting. It gives as an example that if an employer conducts post-incident drug testing to comply with state or federal law, then it would not be retaliatory and would not be prohibited. Obviously this calls into question any mandatory post-incident drug testing program.
OSHA also warns against safety incentive programs that deter reporting of injuries and illnesses. OSHA has long viewed safety incentive programs that reward employees for having no recordable injuries to deter reporting. OSHA cautions that incentive programs should encourage safe work practices and promote worker participation in safety-related activities.
Employers should be sure that the personnel responsible for recording injuries and illnesses are up to speed on these new requirements as well as having a thorough understanding of the overall recording requirements. Managers and supervisors should also be trained on the anti-retaliation provisions. Lastly, workplace drug testing policies and safety incentive programs must be reviewed for compliance with these new requirements.