What you need to know about OSHA’s new electronic reporting, retaliation and post-accident drug testing rule
November 16, 2016 1 Comment
This summer, the Occupational Safety and Health Administration (OSHA) increased its citation structure by 80 percent. The increase gives safety- and budget-conscious employers more incentive to fulfill their regulatory obligations. But with OSHA standards covering everything from jobsite drinking water to fall protection, keeping up can be difficult.
Texas Mutual is here to help. Our safety services staff has been fielding questions from employers about one of OSHA’s newest rules: improved tracking of workplace injuries and illnesses. Let’s take a closer look at the rule and clear up some common misconceptions.
The rule includes two components:
- Electronic injury and illness reporting: This component requires certain employers to electronically submit the injury and illness information they are already required to keep under OSHA regulations. OSHA designed this component to increase accountability and prevent injuries. The electronic submission requirements take effect Jan. 1, 2017, but OSHA will phase them in. We will dig deeper into this component in a future blog post, so stay tuned for more information.
- Anti-retaliation: OSHA reasons that the data it collects under the electronic reporting component will only be accurate if employees feel free to report injuries and illnesses without fear of retaliation. The rule’s anti-retaliation component goes into effect Dec. 1, 2016.
The anti-retaliation component includes three provisions:
- Employers must inform employees of their right to report work-related injuries and illnesses, free from retaliation. Employers can fulfill this obligation by posting the Job Safety and Health — It’s The Law poster. OSHA also recommends employers make it clear in their employee handbooks and new employee orientation materials that employees have the right to report workplace injuries.
- An employer’s procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting. For example, procedures that do not allow a reasonable amount of time for an employee to realize they have suffered a work-related injury or illness could violate this provision.
- An employer may not retaliate against employees for reporting work-related injuries or illnesses. OSHA cites three types of polices that could be considered retaliatory under this provision: disciplinary policies, drug-testing polices and incentive policies.
Question: Am I allowed to discipline employees for violating safety rules?
Answer: The rule does not prohibit an employer from disciplining employees for violating legitimate safety rules, even if that employee was injured as a result of the violation. The rule does prohibit retaliatory, adverse action against an employee simply because they reported a work-related injury or illness. Examples include suspension, harassment, reassignment and termination.
Question: Does the rule prohibit employee safety incentive policies?
Answer: No, but it does prohibit incentive programs that deter or discourage an employee from reporting an injury or illness. Incentive programs should encourage safe work practices and promote worker participation in safety-related activities.
Question: Does the rule prohibit post-accident drug testing?
Answer: Employees who abuse drugs or alcohol compromise their own safety and their co-workers’ safety. The new rule does not prohibit post-accident drug testing. But it does stipulate that if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing doesn’t identify impairment but only use at some point in the recent past, a drug test might inappropriately deter reporting.
For example, it would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury or an injury caused by a falling object.
Question: What if U.S Department of Transportation regulations require me to conduct post-incident drug tests?
Answer: If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory, and testing would not be prohibited.
For more information about the improved tracking of workplace injuries and illnesses rule, see OSHA’s fact sheet and list of frequently asked questions. If you still have questions about the rule, contact your local OSHA office or the Occupational Safety and Health Consultation program.