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.