United States: OSHA New Rules Address Post-Accident Drug Testing, Retaliation Claims, And Electronic Injury/Illness Reporting

Seyfarth Synopsis: OSHA's new final rules call into question mandatory post-accident drug screenings and safety incentive programs, open the door to new retaliation citations, and will require employers to post OSHA logs electronically.   

Introduction

On May 12, 2016 the Occupational Safety and Health Administration published new final rules on discrimination and injury and illness reporting.  81 Fed. Reg. 29624.  First, a new anti-discrimination and anti-retaliation rule will come into force on August 10, 2016 for all employers, as discussed below. Employees must be informed about the requirements of the anti-retaliation rule relating to reporting injuries and illnesses by that date.  OSHA's interprets this rule broadly to prohibit mandatory post-accident drug testing, concluding that such tests discriminate against employees on the basis of injury and illness reporting.  OSHA further explains that incentive programs are retaliatory if they offer benefits to employees or workforces who do not report injuries and illnesses.  Finally, OSHA uses the rule-making to allow compliance officers to issue citations for retaliation, upending the current statutory employee retaliation enforcement framework under Section 11(c) of the Act. 

The regulations further require employers to post workplace recordable injury and illness information electronically.  OSHA will release this employer injury and illness information publicly on its website, believing that its disclosure will "shame" employers into improving workplace safety and health.  The electronic data submission requirement will also ease OSHA's data analysis, presumably to ramp up citations against employers based on the frequency of certain types of injuries (such as OSHA's renewed focus on "ergonomics" injuries) or injuries caused by exposures to certain chemicals or toxic materials.  The remaining provisions of the final rule, including the electronic reporting provisions, will take effect on January 1, 2017.

Drug Testing

Section 1904.35(b)(1)(iv) of the final rules prohibits an employer from discharging or discriminating against an employee for reporting a work-related injury or illness.  OSHA's Preamble to the Final Rule interprets the regulation broadly to prohibit any "adverse action that could well dissuade a reasonable employee from reporting a work-related injury or illness."  OSHA applies the prohibition to any "blanket post-injury drug testing policies deter proper reporting," concluding that drug-testing alone constitutes an "adverse employment action."  OSHA instructs employers to "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."  OSHA explains with examples: 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."

OSHA's interpretation of its new rule calls into question the widespread use of mandatory post-accident drug testing programs.  While federal courts may not uphold OSHA's reasoning that a drug-test, standing alone, is a form of an "adverse employment action," employers should be mindful of their policies and should consider taking action to ensure compliance with the regulation.  Drug-testing policies should be revisited for compliance by August 10, 2016 since the rule requires that the employer have a compliant anti-retaliation policy by that date.

Incentive Programs

In its Preamble on the Final Rule, OSHA similarly condemns employer safety "incentive programs" as form of retaliation.  This position is consistent with OSHA's past rulings and guidance on employer incentive programs, but goes further in widening its prohibition on incentive programs even when they are part of a broader compliance program.  The new rules explain that "it is a violation of paragraph (b)(1)(iv) for an employer to take adverse action against an employee for reporting a work-related injury or illness, whether or not such adverse action was part of an incentive program."  OSHA's interpretation prohibits all programs in which employees are denied a benefit on the basis of any injury or illness report.  For example, if an entire shift loses a safety bonus due to a single employee being injured.

However, an incentive program may make a reward contingent upon, for example, whether employees correctly follow legitimate safety rules, rather than whether they reported any injuries or illnesses.  OSHA further encourages incentive programs that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents, or ''near misses.''  Accordingly, employers should consider OSHA's new interpretation when reassessing their incentive programs to ensure they are offering a benefit or reward based on the reporting of injuries or illnesses.  These types of programs could be adjusted to provide benefits on the basis of compliance with safety rules, or for attending safety trainings or persevering on safety quizzes.

These rules will take effect on August 10, 2016 as part of the required anti-retaliation policy.

New Retaliation Rules

In the Preamble to the anti-retaliation portion of the Final Rule, OSHA takes the position that its compliance officers can issue citations to employers who discipline workers for reporting injuries and illnesses when it believes that no legitimate workplace safety rule has been violated.  Accordingly, OSHA intends to give its compliance officers, who have no formal training in employment discrimination law, the authority to issue citations based on perceived retaliation in the workplace.  OSHA's interpretation overturns the Agency's longstanding statutory framework for retaliation complaints under Section 11(c) of the Act, under which employees must report allegations of retaliation, which are then investigated by specialized investigators.  Unlike a Section 11(c) complaint, in which an employee must file a retaliation claim with OSHA within 30 days, a compliance officer has 6 months to issue OSHA citations from the last day that the alleged violation occurred. The employee is not required to file any complaint.  Accordingly, the statute of limitations for retaliation claims could be significantly expanded.  We anticipate that the new interpretation will result in additional unfounded retaliation citations.

In its explanation to the Final Rule, the Agency also posits that employer policies requiring an employee to immediately report an injury or be disciplined may also be retaliatory.  OSHA believes that immediate-reporting policies will chill employees from reporting slow-developing or chronic injuries or illnesses, such as musculoskeletal disorders or poisoning from prolonged lead exposure.  According to OSHA, to be reasonable, a policy must allow for reporting within a reasonable time after the employee realized that he or she had suffered a work-related injury, rather than just immediately following the occurrence of an injury.

These rules also will take effect August 10, 2016.

Electronic Submission of Recordable Injury and Illness Data

Unlike the anti-retaliation provisions in the new Rule, OSHA spends minimal time interpreting the Electronic Submission requirements, which are supposedly the real purpose behind the new Rule.  The Electronic Submission portion of the Final Rule requires individual employer establishments with 250 or more employees to submit information electronically from their 2016 Form 300A by July 1, 2017.  These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018.  Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

Those establishments with 20-249 employees operating in what OSHA designates as "high hazard industries" (including department stores, nursing homes, construction) must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018.  Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

OSHA will require employers to submit all information from their logs, except information in the columns with employee names, employee addresses, health care professional names, and health care treatment facilities.  The final rules do not specify how this information will be submitted electronically.  Though we do not know that this will be a problem, due to privacy laws, employers should not submit information that identifies a specific employee or an employee's medical information.  The electronic disclosure requirements will also apply to employers located in State Plan States.

Online Posting

OSHA will post this data on a publicly available website, which will be accessible by competitors, contractors, employees, and employee representatives.  The specifics of its new data disclosure portal are not explained in the regulations.

Conclusion

These new rules require certain employer policies to be reevaluated during the next two months, including the anti-retaliation policy and employee training.  Employers should take steps to ensure that they are in compliance with OSHA and local laws and regulations as quickly as possible.  Proactive steps in the face of this regulatory scrutiny now may allow the employer to avoid costly enforcement and litigation in the future.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Patrick D. Joyce
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.