On May 11, 2016, the Occupational Safety and Health Administration (OSHA) published the much-anticipated final rule revising its regulations on the recording and reporting of occupational injuries and illnesses.
The final rule requires employers to electronically submit information about workplace injuries and illnesses, and it bars employers from retaliating against workers for reporting such incidents. It also requires employers to inform workers of their right to report work-related injuries and illnesses without fear of retaliation and clarifies employees’ rights to access workplace injury data.
Two sets of employers will have to comply with the electronic record-keeping provisions: all establishments with 250 or more workers, and those establishments in designated high-hazard industries with 20 to 249 workers. These qualifying establishments must submit information from OSHA Forms 300A electronically by July 1, 2017, and submit information from all forms (300A, 300, and 301) electronically by July 1, 2018. Beginning in 2019, information from these forms must be submitted electronically by March 2 each year.
In addition to the recording and reporting requirements, the anti-retaliation provisions of the final rule will impact post-accident drug-testing policies beginning Aug. 10, 2016. Though the text of the final rule does not specifically address mandatory post-accident drug and alcohol testing, OSHA’s commentary accompanying the final rule specifies that the agency views mandatory post-accident testing as deterring the reporting of workplace safety incidents.
Specifically, OSHA wants to prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. The agency commented that “drug testing policies should 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.“ It goes on to say that employers do not have to specifically suspect drug use before testing, but there should be a reasonable possibility that drug use was a contributing factor to the reported injury or illness in order for an employer to require testing.
Finally, the new rules provide that it is a violation for an employer to use an incentive program or take adverse action because an employee reports a work-related injury or illness. This includes disqualifying the employee for a monetary bonus or any other action that would discourage or deter an employee from reporting the work-related injury or illness. OSHA recently challenged an employer’s policy of disciplining employees who wait more than seven days to report an injury. In contrast, if an incentive program makes a reward contingent upon, for example, whether employees correctly follow legitimate safety rules rather than whether they reported any injuries or illnesses, the program would not violate the rules. Unfortunately, the rule doesn't offer details on what incentive provisions would trigger a citation, rather, programs will be viewed on a case-by-case basis.
Employers who do not comply with the new rule face serious penalties for each violation, especially since OSHA has implemented increases that permit maximum penalties to over $12,000 per violation and over $120,000 for willful or repeat violations.