Mark Smith

Partner

mark@srapllc.com

OSHA has published a final rule regarding electronic reporting of employee injuries. Under the new final rule that becomes effective January 1, 2017, OSHA will revise its requirements for recording and submitting records of workplace injuries and illnesses to require that some of this recorded information be submitted to OSHA electronically for posting to the OSHA website.

The final rule requires certain employers to electronically submit the injury and illness information they are already required to keep under existing OSHA regulations. The requirement applies to the following:

  • Establishments with 250 or more employees that are currently required to keep OSHA injury and illness records must electronically submit 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.
  • Establishments with 20-249 employees that are classified in certain industries with historically high rates of occupational injuries and illnesses must electronically submit information from OSHA Form 300A.

The electronic submission requirements do not change an employer’s obligation to complete and retain injury and illness records.

In addition, the final rule includes provisions that encourage workers to report work-related injuries or illnesses to their employers and prohibit employers from retaliating against workers for making those reports. To accomplish this, OSHA is requiring the following provisions to promote complete and accurate reporting of work-related injuries and illnesses:

  • Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation. This obligation may be met by posting the OSHA Job Safety and Health — It’s The Law worker rights poster from April 2015 or later (www.osha.gov/ Publications/poster.html).
  • An employer’s procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting.
  • An employer may not retaliate against employees for reporting work-related injuries or illnesses.

The key phrase above for employer post-accident drug testing policies is “must not deter or discourage employees from reporting.” During the open comment period regarding the proposed rule, OSHA received a number of comments regarding employer post-accident drug testing policies. Regarding these comments, OSHA stated, “OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.”

While not completely banning post-accident drug testing, OSHA said:

[T]his final rule does not ban drug testing of employees. However, the final rule does 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. 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. 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 lack of machine guarding or a machine or tool malfunction. Such a policy is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety. Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing. In addition, drug testing that is designed in a way that may be perceived as punitive or embarrassing to the employee is likely to deter injury reporting.

As a result, it is important for employers to examine carefully their drug testing policies to ensure they comply with the new OSHA rules.

If you would like to contact Smith Reed & Armstrong, PLLC regarding a review of your current policies, please click here. Or, for more information regarding OSHA’s new rule regarding reporting injuries, please click here.