Will OSHA Conduct an Inspection after an Employee Complaint?

OSHA will make inspections of a workplace for a variety of reasons, including following a worker injury and always after a worker’s death.

Inspections may also occur randomly or part of a program aimed at a particular industry that OSHA has decided to target.

The other way an inspection may occur – and the main focus of this article – is if an employee contacts the agency to complain about possible safety violations.

These complaints may or may not result in an inspection of your workplace based on certain conditions, including the timing of the complaint. Under OSHA regulations, a worker can only report an alleged violation.

After OSHA receives a complaint it will decide whether it is worthy of an on-site inspection.

The agency has a set of criteria, at least one of which must be met in order for it to conduct an on-site investigation or an investigation that includes sending the employer a questionnaire to determine if it is complying with its safety regulations.

A current employee or employee representative must submit a written, signed complaint:

  • That includes enough details to help OSHA assess whether the employer is violating its safety regulations or if there is an imminent danger of physical harm to employees.
  • That alleges the worker was injured or made ill by a hazard that is still present in the workplace.
  • That claims an imminent danger to workers exists in the workplace.
  • About a company in an industry that is part of an OSHA local or national emphasis program, or a high-hazard industry that is the focus of such a program.
  • Against an employer that has been cited in the past three years by OSHA for egregious, willful or failure-to-abate citations.
  • Against a facility that is scheduled for or already part of an OSHA inspection.


If any of these conditions are not met, OSHA will typically make a complaint inquiry by phone or e-mail.


How a complaint inquiry works

If, for example, one of your employees contacts OSHA to complain that you are not using proper lock out/tag out procedures when cleaning certain machinery, the agency would likely contact your company.

It would tell you about the alleged hazard and ask that you assist in determining whether a hazard or violation exists.

During that first point of contact, the agency would ask that:

  • You promptly investigate to see whether the violation does indeed exist and that if it does, you abate the hazard to ensure employee safety and regulatory compliance.
  • After investigating, you document your findings and detail what kind of corrective action you took or are undertaking.
  • You post a copy of the complaint letter from OSHA in a conspicuous area so that all of your employees can see it.


OSHA usually requires that you respond with the results of your internal investigation and provide the report of findings and action taken within five days of being contacted by the agency.

If you don’t respond to the initial contact, do not provide a report within five days or if OSHA deems your response inadequate, it may then decide to inspect your facility.

OSHA will also provide a copy of your response to the complaining employee. If the employee thinks you have not made the corrections or have not been honest with OSHA, they can ask the agency to conduct an on-site inspection.


Silica Safety Enforcement Delayed for Construction Industry

Cal/OSHA has delayed enforcement of its crystalline silica safety standard for the construction industry for another three months to ensure the California rules are in synch with federal rules on the dangerous airborne matter. The move came after Fed OSHA announced April 6 a delay in adoption of the crystalline silica standard for the sector “to conduct additional outreach and provide educational materials and guidance for employers.”

The silica rules have already been in effect for general industry since 2016 and the delay in enforcement is only for the construction industry. Enforcement for the construction sector was slated to start June 23, but that’s been changed to Sept. 23 under the new order. Under the new silica standard, the permissible exposure limit is 50 micrograms per cubic meter of air, compared to the old standard of 100. The California standard is similar to the federal standard, which the industry is challenging in a federal lawsuit. One outfit, the American Chemistry Council, wrote to the Cal/OSHA standards board that the 50 micrograms level is unnecessary and that the current standard, in place since 1971, has markedly reduced the cases of silicosis.

Industry has complained that the cost of complying with the new standard for employers nationwide will be about $6 billion, although Fed-OSHA says it will cost $371 million for employers to fall in line. The sticking point for the federal construction silica rule is that it requires wet cutting of silica-containing materials to reduce the chances of particles in the air. The California rules allow for wet cutting and dry cutting with vacuum saws that suck in the particles before they escape into the air. Contractors would rather cut dry rather than wet.

Fed-OSHA’s requirements were also scheduled to take effect on June 23, but the agency announced that implementation would be delayed by three months to give industry a chance to provide data showing that dry vacuum cutting is just as safe in reducing crystalline silica dust as wet cutting. While Cal/OSHA’s move only delays enforcement, the silica rule is already on the books and employers should comply with it.

All construction employers covered by the standard are required to:

  • Establish and implement a written exposure control plan that identifies tasks that involve exposure and methods used to protect workers, including procedures to restrict access to work areas where high exposures may occur.
  • Designate a competent person to implement the written exposure control plan.
  • Restrict housekeeping practices that expose workers to silica where feasible alternatives are available.
  • Offer medical exams – including chest X-rays and lung function tests – every three years for workers who are required by the standard to wear a respirator for 30 or more days per year.
  • Train workers on work operations that result in silica exposure and ways to limit exposure.
  • Keep records of workers’ silica exposure and medical exams.


If you have not started complying, you should get your new safety protocols in place now. You have an additional three months to do so.


OSHA Pulls the Plug on Electronic Reporting Rules

Federal OSHA has suspended its much anticipated and dreaded electronic filing rules for workplace injury and illness records. The rules, put in place during the Obama Administration, would have required organizations with 250 or more employees to submit electronically information from OSHA Forms 300 (Log of Work-Related Injuries and Illnesses), 300A (Summary of Work-Related Injuries and Illnesses), and 301 (Injury and Illness Incident Report). The same rules would also apply to employers with between 20 and 249 employees in certain industries, including agriculture, construction, manufacturing, retail and transportation.

A major thrust of the rules was to name and shame employers with poor workplace safety histories, and the latest move will essentially keep these records from being published. The requirement was to be phased in over two years. This year, all covered establishments had until July 1 to turn in their 2016 forms in electronically, but OSHA never launched the website for companies to submit the information.

The employer community, particularly the construction industry, had heavily lobbied the Trump Administration to jettison the new rules, saying that if injury records were publicized they could unfairly hurt the reputation of employers. The new rules were supposed to be an extension of an OSHA requirement between 1995 and 2012 that required some 180,000 establishments in high-hazard industries to submit their 300A forms by mail. The program lapsed in anticipation of the now extinguished new rules. Then in May, OSHA wrote on its website that it “is not accepting electronic submissions of injury and illness logs at this time, and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information.” As a result, the existing rules for the forms remain in place – and particularly that employers post Form 300A in a conspicuous place in the workplace every year starting Feb. 1 for two months.

While employers are not required to send their completed forms to OSHA, they must retain the forms at their establishments for five years after the reference year of the records.

Compliance with existing rules

Even if you are not focused on qualifying for either of these exemptions, there are still other important things to remember about posting your 300A.

  • If you are required to post a 300A, you need to do so whether or not you had any injuries in the past year. It is completely appropriate – and required for covered businesses – to post a 300A saying that you had no injuries or illnesses.
  • Sign the 300A when you post it. That is required, and something businesses often forget to do.
  • Post the 300A in an accessible location where employees can easily see it, and keep it posted until April 30.
  • Be sure to post the 300A, and not the 300. Not only is this problematic because it is the incorrect form, but the 300 contains employee names, so making it public can result in privacy violations.
  • You do not need to post the official 300A form from OSHA’s website; it is acceptable to post your own, homemade form containing equivalent information if you would prefer to do so.

New OSHA Rules Delayed, Watered down under Trump

Acting on new marching orders from the Trump Administration, federal OSHA seems to be scaling back some regulations to benefit employers.

Significantly, it seems that large employers will not be required to start submitting their injury and illness reports electronically as required by Obama-era regulations that were to take effect in February.

The idea was that these electronic filings would become public information easily accessed online, as part of Obama’s push to publically shame companies with poor workplace safety records.

Under current regulations, establishments with 250 or more employees in industries covered by the record-keeping regulation must submit information from their 2016 Form 300A electronically by July 1, 2017.

As recently as early January, OSHA said on its website that it expected the site to be live in February. But in recent weeks, the agency changed the wording and it now states that: “OSHA is not accepting electronic submissions at this time.”

It’s unlikely that the electronic reporting will go forward under Trump, and that will also likely mean that companies won’t have their records posted online.

Another Obama rule, issued in December, is also likely to never see the light of day. That regulation gives OSHA the authority to cite companies failing to properly record workplace injuries up to five-and-a-half years after an alleged violation.

For years, OSHA had taken the position that it had up to five-and-a-half years after an alleged violation to issue a citation for record-keeping infractions.

But a court in 2012 found that OSHA’s interpretation was inconsistent with what the court called the “clear” wording of the law, which gave the agency only six months to bring charges.

In response to that ruling, the Obama administration promulgated new regulations circumventing the court decision and restoring the five-and-a-half-year period. Legislation overturning Obama’s rule has already been passed by both houses of Congress and Trump is expected to sign it. When he does, the six-month rule would stand.


Downside for honest firms
The problem for honest employers in this is that six months does not give OSHA enough time to detect record-keeping violations and bring subsequent charges. Also, if an inspector finds during an inspection that a company has been flouting the law and not filing its records for years, OSHA would be unable to cite the business.

Unfortunately, this could create an unlevel playing field, as responsible companies comply with record-keeping rules, while companies that take shortcuts won’t.

In a further step, OSHA announced in February that it would delay the implementation of a new rule aimed at reducing workplace exposure to beryllium, a widely used mineral linked to a deadly lung disease.

The rule was slated to take effect in March, but OSHA has delayed that until May at the earliest.

Employers can also expect a slowdown in new rule-making thanks to Trump’s executive order in January that agencies must cancel two regulations for every new one they make.

The new policy is expected to slow ongoing OSHA rule-making, such as an industry-backed effort to write regulations specifically for tree-trimming work and discourage the agency from pursing wide-ranging rules, such as revising limits for chemical exposures.



When Safety Shortcuts Become a Criminal Act

As the economy grows and companies’ operations are busier, workplace injuries also increase. And as companies add employees, they may fail to keep up their safety regimens, which can result in an uptick in workplace injuries.

Some businesses have so much to keep track of that they may be negligent in enforcing their safety standards and making sure that all of their safety devices are in proper operating order.

When an employee is injured due to an employer’s negligence in keeping up its safety practices, there is typically no right of action for the employee under the exclusive remedy bargain that’s implicit in all workers’ comp agreements.

In that bargain, the employee trades the ability to sue the employer for the right to receive benefits and medical care to treat the injury.

But there is a point where employer negligence spills over into a criminal issue and owners risk incarceration for flagrant violations that put employees at risk.

And during the last few years OSHA has been stepping up criminal prosecutions of employers whose actions were more than just negligent.

While criminal penalties under the federal Occupational Safety and Health Act are fairly limited, with imprisonment capped at six months and fines capped at $10,000, the fines are stiffer for willful violations that cause loss of human life, with maximum fines of $250,000 for an individual and $500,000 for an organization.

If an employer’s willful violation of an OSHA standard causes the death of an employee it is not a felony, but a “Class B” misdemeanor.

And although the act carries with it the possibility of a prison term, in practice, prison occurs only in the rare circumstances where a senior management official operates de facto as the company. Otherwise, practically, only criminal monetary fines are applied for criminal violations.

Historically, there have been few prosecutions. There have been fewer than 80 OSH Act criminal cases resulting from the more than 400,000 workplace deaths that took place since the law was enacted. That’s fewer than two a year, and only 14 have resulted in criminal convictions.

Also, it’s challenging to prove a criminal violation under the OSH Act.

But in 2016, the Department of Justice (DOJ) started encouraging all United States Attorneys to charge employers for other violations that occur in connection with OSH Act violations, such as obstruction of justice, making false statements, witness tampering and conspiracy.


U.S. Attorneys were also encouraged to consider environmental crimes, which often occur in concurrence with worker safety violations. These offenses carry more significant periods of incarceration and fines.


Conviction examples

Two noteworthy examples of this wider implementation of the law are:

  • The owner of a roofing company in Philadelphia lied to OSHA on four occasions that he’d provided fall protection to employees after one his workers fell to his death. He even went so far as to instruct other workers to tell OSHA that they had worn fall protection on the day of the incident.
    He was indicted for lying, obstruction of justice and willfully violating an OSHA standard. Facing 25 years in prison, he pleaded guilty and was sentenced to 10 months in jail.
  • A worker was killed in 2015 because of a trench collapse at a construction site in Manhattan’s Meatpacking District. The general contractor was convicted of manslaughter for improperly securing the work site.


To obtain a conviction under Section 17(e) of the act, a prosecutor must establish beyond a reasonable doubt (unlike the lower civil standard for ordinary OSHA enforcement actions) that:

  • An OSHA standard (not the General Duty Clause) was violated;
  • The violation was committed by the employer (in other words, not by a rogue employee);
  • The violation of the standard was the direct cause of an employee’s death (prosecutors must prove beyond a reasonable doubt that the conduct underlying the OSHA violation resulted in the death); and
  • The violation was committed willfully by the employer.


Other actions that may result in criminal action

According to a the DOJ, in addition to willful OSHA violations that caused an employee fatality, employers (and employees) can face criminal sanctions in the following circumstances:

  • Falsifying OSHA documents
  • Advance notice of an OSHA inspection
  • Perjury during OSHA proceedings
  • Violating state criminal laws – The OSH Act does not preempt prosecution under state criminal laws, such as manslaughter or negligent homicide for work-related deaths and injuries.
  • Violating environmental laws.

Report, Investigate Near Misses to Improve Safety

One of the most important workplace safety tools that you can put to use is the reporting of near misses and correcting the factors that led to such a close encounter.

A near miss is an event that could have led to a workplace injury, illness or death. While you are not required to report near misses to your insurer, you should be taking note of them as they can help you identify deficiencies in your workplace safety protocols.

You should use near misses as the starting point to conduct inspections that could help you prevent a real workplace injury in the future. But you can’t investigate what you don’t know, and it’s crucial therefore that your staff report such events.

Investigating near misses is part of any successful workplace safety management program and you should make the process for reporting them easy and without ramifications for the reporting employee.


What is and isn’t a near miss

An OSHA factsheet defines a near miss – or close call – as an incident in which no property was damaged and no workers were injured, but where, given a slight shift in time or position, damage or injury easily could have occurred.

The factsheet stresses that although near misses cause no immediate harm, they can precede events in which a loss or injury could occur.

You should resist the urge to chalk the near miss up to just luck or bad luck, because a series of events or lack of precautions would have led up to the close call.

Typically, near misses are the result of a faulty process or management system and it should be your goal to investigate and find out where the breakdown occurred and what you can do to improve it.


A near-miss program

Near-miss reporting is vitally important to preventing serious, fatal and catastrophic incidents that are less frequent but far more harmful than other incidents.

The National Safety Council recommends that the following should be part of your safety program:

  • Clearly define “near miss.”
  • Establish a reporting system that reinforces the notion that every opportunity to identify and control hazards, reduce risk and prevent harmful incidents must be acted on.
  • Investigate near-miss incidents to identify the root cause and the weaknesses in the system or employee action that resulted in the circumstances that led to the near miss.
  • Use investigation results to address the failure that led to the near miss and to improve safety systems, hazard control and risk reduction.
  • Use the lessons learned and your new protocols in employee safety training.


Reporting system

One of the key aspects of a near-miss program is reporting. Most importantly, you want to encourage your workers to report such incidents because often they may occur out of sight from a supervisor or manager.

You should put out clear instructions for all personnel on how to report near misses, including whom to report to. Create forms that detail the events, what happened and why they think it constituted a near miss.

Make sure to not assail any worker reporting a near miss. Encourage your personnel to report near misses without fear of retribution or being blamed.

Avoid thinking in terms of whom to blame when investigating a near miss and instead focus on what precipitated it.


Case studies

LESSONS LEARNED – A manufacturer uses event and near-miss analysis to head off future incidents. It uses an event system that records the near miss, including detailed information on what led to the close call and what lessons can be learned from the event. Those lessons are shared throughout the organization.


IMMEDIATE ACTION – A chemical manufacturer tracks lower-level claims and near misses to identify areas where more significant injuries are likely to occur. The company encourages employees to take action to resolve issues on a temporary basis until permanent controls can be implemented.

New Slip, Trip, Fall Prevention Rules for General Industry – copy

Federal OSHA implemented a new rule on Jan. 17 that is aimed at reducing slip, trip and fall hazards in the workplace.

The revisions are aimed at tackling one of the main causes of worker deaths and injuries in American workplaces by applying rules designed for the construction and manufacturing sectors to other general industries.

They add requirements for personal fall protection systems and eliminate existing mandates to use guardrails as a primary fall protection method. They also allow employers to choose from accepted fall protection systems which type they want to use.

The new standard will prevent some 30 workplace deaths and more than 5,800 injuries every year, OSHA says.

While the rules will have little impact on construction and manufacturing, management in other industries needs to bone up on the rules to ensure companies are in compliance.

The most significant update to the rules allows employers to choose the fall protection system that is most effective for them and based on a variety of acceptable options, including the use of personal fall protection systems.

The agency has allowed the use of personal fall protection systems in construction since 1994, and the final rule adopts similar requirements for general industry.

The final rule also allows employers to:

  • Use rope descent systems up to 300 feet above a lower level.
  • Prohibit the use of body belts as part of a personal fall arrest system.
  • Require worker training on personal fall protection systems and other equipment designed for falls.


OSHA says it tried to align fall protection requirements for general industry “as much as possible” with its requirements for construction because many employers perform both types of activities.

The final rule for general industry updates requirements for ladders, stairs, dockboards, and fall and falling object protection.


Key provisions

Fall protection

An employer’s obligation to provide fall protection is triggered when employees work at least four feet above a lower level.

The final rule requires employers to select one or more of these options, depending on the particular situation or activity:

  • Guardrail system
  • Safety net system
  • Personal fall arrest system (body belts now prohibited)
  • Positioning system
  • Travel restraint system
  • Ladder safety system (does not include cages or wells)
  • Handrails
  • Designated areas (only permitted on low-slope roofs)


The rule establishes fall protection options and other requirements for some specific situations like hoist areas, runways, wall openings, repair pits, and stairways.


Ladder safety

The final rule sets out general ladder safety requirements applicable to fixed ladders, portable ladders, and mobile ladder stands and platforms.

Employers must ensure that:

  • Ladders are capable of supporting at least the maximum intended load, i.e., the total weight and force of anticipated employees and equipment or other materials.
  • Mobile ladder stands and platforms are capable of supporting four times the maximum intended load.


Ladders must be inspected before initial use during a work shift, and as necessary, to identify visible defects that could cause worker injuries.



Employers must ensure training of workers who use personal fall protection or work in dangerous circumstances, including working on loading docks. Workers must be trained by a “qualified person,” and the training must be understandable to employees and cover:

  • Identification of fall hazards.
  • Proper use of personal fall protection systems.
  • Maintenance, inspection, and storage of equipment or systems used for fall protection.


Employers must also ensure the retraining of workers when they have reason to believe workers lack the required comprehension and skill.

Inexperienced Workers More Apt to Sustain Workplace Injuries

As an employer you need to pay special attention to the safety of inexperienced workers, who account for nearly half of all reported workplace accidents, according to a new survey.

The survey, by the Golden Triangle Business Roundtable in Texas, found that workers with less than five years’ experience accounted for 43% of reported workplace injuries.

It also found that workers with between five and 10 years’ experience accounted for another 34% of incidents.

OSHA says there are a few reasons younger and inexperienced workers are more prone to workplace injuries:

  • They are often are employed in industries that have a higher frequency of injury hazards (think hazards in restaurant settings associated with slippery floors and use of knives and cooking equipment).
  • Inexperience and lack of safety training.
  • Less aversion to taking risks.


The risk is more acute in construction and other craft fields that already have high rates of workplace incidents.

“Decision-making continues to be reported as leading accident causes and risk-taking continues to be a pre-existing cause for accidents,” the Golden Triangle Business Roundtable report said.

 Inexperienced workers get injured or sick on the job for many reasons, according to OSHA, including:

  • Unsafe equipment
  • Inadequate safety training
  • Inadequate supervision
  • They are more apt to take risks
  • Dangerous work that is illegal or inappropriate for youths under 18
  • Pressure to work faster
  • Stressful conditions


OSHA recommends taking the following actions:

  • Ensure that young or inexperienced workers receive training to recognize hazards and are competent in safe work practices particular to your worksite. Training should be in vocabulary that workers can understand and should include prevention of fires, accidents and violent situations – and what to do if injured.
  • Drive home the point that workers should not take any risks when doing their jobs. They should not stray from standard operating procedure to get the job done.
  • Implement a mentoring or buddy system for new employees. Have an experienced worker answer questions and help the new worker learn the ropes.
  • Encourage young workers to ask questions about tasks or procedures that are unclear or not understood. Tell them whom to ask.
  • Ensure that equipment operated by young workers is both legal and safe for them to use. Employers should label equipment that young employees are not allowed to operate.
  • Make sure all workers know whom to talk to if they are hurt on the job.


Supervision is crucial

The only way to ensure your workers are carrying out their safety obligations is to supervise them adequately.

The amount of supervision will depend on the nature of the work and the control measures you already have in place. So, if you have a risky activity or low control measures, more supervision may be necessary.

But, supervision does not mean the constant surveillance of your workers’ work activities – rather, it means general direction, coordination and oversight.

To identify activities that may need greater supervision, you should answer the following questions:

  • Do any work tasks involve a high degree of risk?
  • Are new or inexperienced workers performing the tasks?
  • Are apprentices or young workers performing the work?
  • Are workers using new or recently modified machinery?
  • Do any of your workers have language difficulties or physical restrictions/limitations?
  • Do any tasks require interaction between many different workers?


If you answered yes to one or more of these questions, you should step back and analyze the work tasks and risks and then determine how much supervision may be required to ensure the safety of your less experienced employees.


OSHA’s Electronic Reporting Rules Contain Hidden Requirements

By now you should be aware of Federal OSHA’s new rules on the electronic reporting of workplace injuries and illnesses that will take effect next year.
But, while the new rules focus mainly on employers with 250 or more workers submitting Form 300A electronically starting in 2017, the new regulation actually contains a number of other rules that employers need to know about – in regard to additional notification and anti-discrimination implications for organizations.
One of those rules concerns “retaliatory adverse actions by employers.” The rule unsettled some employers groups, which have challenged it in court. As a result of the challenge, OSHA announced that it would delay enforcement of the provisions until Nov. 1, 2016, from the original implementation date of Aug. 10, 2016.
OSHA said it would use the next few months to “conduct additional outreach and provide educational materials and guidance for employers.”
Specifically, the new electronic reporting rules contain provisions on discrimination and retaliation, post-incident drug testing, and workplace safety incentive programs.

Discrimination and retaliation
Here’s what you need to know about the new rules:
• Employers must ensure that their reporting procedures are designed so that they do not deter or discourage employees from reporting job-related injuries and illnesses.
• Employers cannot have in place reporting mechanisms that are too burdensome, or require employees to take too many steps to report an injury or illness promptly.
• Employers may not have in place policies that discipline employees for failing to report an injury in a timely fashion. This mainly concerns injuries that develop over time, like repetitive motion and cumulative trauma injuries.
• Employers’ reporting mechanism and discipline policies must allow for reporting of injuries and illnesses within a reasonable timeframe after the employee has realized that he or she has suffered a work-related injury or illness.
• Employers must inform employees that they have a right to report work-related injuries and illnesses free from retaliation. The workplace safety agency recommends posting OSHA’s “It’s The Law” worker rights poster, which is available on the agency’s website.
• While retaliation against an employee who reports a workplace injury or a safety concern is already prohibited, the new regulation includes a provision stating employers must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.
While this seems redundant, it’s not. The change allows OSHA to issue citations for retaliation or discrimination even if an employee has not filed a complaint with OSHA.

Post-incident drug testing
Some workplace safety experts have said in the past that employer rules that require post-injury drug testing, may actually discourage workers from reporting injuries.
So, OSHA stated in its commentary on the regulation that blanket post-injury drug testing policies can be a form of retaliation.
“To strike the appropriate balance here, 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 cited as examples of unreasonable testing, the drug testing of an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a tool malfunction or lack of a machine guard.
In other words, if there is a reasonable possibility that drug use was a contributing factor to a reported injury, then testing would be permissible.
If you have a policy like this in place, you may want to review and revise it.
And OSHA seems to be focused on the “impairment” rather than just the presence of a drug. For example, a person can test positive for marijuana use for 30 days after ingesting it, but testing positive does not mean they were high at the time of the injury.

Workplace safety incentive programs
OSHA also stated in its commentary for the proposed rules that certain incentive programs that reward employees for remaining injury free at work can be retaliatory and deter reporting of injuries.
Although some employers offer to pay employees or a bonus or enter their names in a drawing for a prize in an effort to encourage workplace safety, OSHA states that these types of incentive programs result in the significant underreporting of recordable injuries, especially if employees are subjected to peer pressure from coworkers who also will be denied the award/prize as a result of a reported injury.
According to OSHA, this violates anti-retaliation regulations because an employer would take an adverse action – like denying a reward or benefit – because a worker reports an accident.
Instead, OSHA asks that employers use incentives for identifying hazards, participating in safety committees and similar activities.

OSHA Sets Limits on Drug Testing Injured Workers

Employers are not allowed to have a blanket policy of requiring drug and alcohol tests after a workplace injury as it may discourage injury reporting, the U.S. Occupational Safety and Health Administration has said in an interpretation letter.
It issued the letter in response to a company’s blanket policy after some intoxicated workers had been injured on the job, and it comes as a new OSHA regulation on post-injury testing is slated to take effect at the start of 2017.
These recent actions should spur any employer with a policy of testing its workers post-accident to revisit its rules so they don’t run afoul of OSHA’s regulations.
OSHA’s “Improve Tracking of Workplace Injuries and Illnesses” rule does not bar employers from drug or alcohol testing its workers, but it does prohibit companies from using such testing or the threat of it as a form of retaliation against employees who report injuries. These new rules were published in May 2016 and will take effect on Jan. 1, 2017.
However, the rules specifically point out that 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 this rule would not prohibit such testing.
With this new rule the agency is likely to take a hard stance on mandatory post-injury drug testing without a compelling reason.
It is unclear what will happen to employers who enforce post-incident testing policies that OSHA deems unreasonable, although several experts say they expect the agency will attempt to cite employers.
The rule will likely have far-reaching effects considering that 56% of U.S. manufacturers had such policies, according to a 2012 study by the Government Accountability Office. That same study found that these policies “may discourage workers from reporting injuries and illnesses.”
OSHA says in the rule that employer 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 test can accurately identify impairment caused by drug use, according to the final rule.
Examples of instances that OSHA says would not be reasonable to conduct a drug test include:
• An employee who reports a bee sting.
• A repetitive strain injury.
• An injury caused by a lack of machine guarding, or by a machine or tool malfunction.

Under the rule, employers do not have to specifically suspect drug and/or alcohol use before testing, but there should be a reasonable possibility that such use by the reporting employee contributed to the reported injury or illness for the employer to mandate the testing.
The probable cause for a drug test would need to be based on observation and a good-faith belief that an employee is under the influence of drugs or alcohol. Such observations should be made by two people trained to spot such impairments and should be documented in writing
Employment law attorneys recommend that all employers look at their current policy for post-injury drug and alcohol testing, how that policy is communicated to employees, and what kind of feedback they had when the policy was put into place.