United States: OSHA Limits Post-Accident Alcohol & Drug Testing, Expands Scope Of Anti-Retaliation Provisions

Last Updated: August 9 2016
Article by Asad Rizvi

A new OSHA rule will curtail the ability of employers to conduct post-incident alcohol and drug testing, while at the same time expanding employer liability for retaliation and dramatically transforming the manner in which injuries and illnesses are reported.

On May 12, 2016, the Occupational Safety and Health Administration published a final rule (92 Fed. Reg. 29624) revising its Recording and Reporting of Occupational Injuries and Illness regulations. To the extent not already done so, employers will be required to establish a reasonable procedure for employees to report work-related injuries or illnesses promptly and accurately. The new anti-retaliation regulations will become effective on November 1, 2016 while the electronic recordkeeping requirements will go into effect on January 1, 2017.

Here is a summary of the final rule's key provisions: 

Limitations on Post-Accident Drug Testing

Perhaps one of the most significant developments of the new rule is the limits it aims to place on employers' post-accident/incident alcohol and drug testing policies. Employers have for years relied on the indisputable health and safety concerns that necessitate immediate post-accident alcohol and drug testing in the workplace. Indeed, the U.S. Supreme Court has emphasized that mandatory post-accident testing is a crucial deterrent in safety-sensitive positions and is intended to prevent employees from using alcohol and drugs in the workplace before an accident occurs. Ironically, OSHA has taken a different view on this longstanding policy, arguing that such policies have a chilling effect on the reporting of injuries or illness by instilling fear in employees about mandatory drug testing. OSHA's new rule seeks to loosen the grip that employers hold over employees with such policies, claiming that it aims to "strike the appropriate balance." 

Under the final rule, employers will be prohibited from discharging or discriminating against an employee for reporting a work-related injury or illness. Specifically, the rule prohibits "any adverse action that could well dissuade a reasonable employee from reporting a work-related injury or illness." According to OSHA, "blanket post-injury drug testing policies" are unlawful because they "deter proper reporting" and drug-testing, alone, can qualify as an "adverse employment action."

Post-incident drug testing will now need to be limited 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 instance, OSHA explains that drug tests would be inappropriate for an employee who has reported a bee sting, a repetitive strain injury or an injury caused by a lack of machine guarding or a machine or tool malfunction. Employers with mandatory post-accident drug testing policies will need to reassess their policies.

Doubling Down on Safety Incentive Programs

Reasoning that employer safety incentive programs which deny benefits to employees for reporting an injury or illness constitute a form of retaliation, the final rule expressly forbids such programs from being used as an instrument to disincentivize health and safety reporting. Under the new rule, an employer may not "take adverse action against an employee for reporting a work-related injury or illness, whether or not such action was part of an incentive program." It would be unlawful under the new rule, for instance, to deny a segment of a workforce a safety bonus under such a program due to the injury report of a single employee.

Nonetheless, safety incentive programs that reward employee participation in safety-related activities, the investigation of injuries or following safety rules, will remain legitimate programs not subject to scrutiny under the new anti-retaliation provision.

Anti-Retaliation Liability Expanded

The final rule represents a significant expansion of OSHA's right to penalize employers for engaging in what the agency perceives to be unlawful retaliation. The new rule empowers OSHA compliance officers to cite employers for retaliation where employees are disciplined for reporting injuries and illness even where the employee has not filed a complaint. Currently, OSHA investigates employer retaliation only after an employee files a Section 11(c) whistleblower complaint, which must be done promptly within 30 days. Under the new rule, compliance officers will be authorized to cite employers for retaliation as late as six months after the date of the alleged violation. 

The new anti-retaliation rule also prohibits employers from disciplining employees who fail to immediately report an injury or illness. According to OSHA, such policies are problematic because they punish employees who suffer from slow-developing or chronic injuries or illnesses (i.e. musculoskeletal disorders, lead exposure) and are thus unable to report injuries instantaneously. Under the new rule, employer policies must allow employees a "reasonable time" to report an injury or illness to be deemed compliant. 

Understandably, the new anti-retaliation regulations have generated a great deal of criticism from the business community. In response, OSHA has delayed the effective date of the anti-retaliation provision from August 10, 2016 to November 1, 2016 to conduct "additional outreach and provide educational materials and guidance for employers."

Electronic Injury and Illness Reporting

Employers will need to submit their OSHA logs electronically. The procedures for doing so will vary based on the size of the employer (part-time, seasonal and temporary workers must be counted). All information from the logs will need to be submitted electronically, except for employee names, employee addresses, health care professional names and health care treatment facilities, via a "secure Web site for the electronic submission of information." The data will be made publicly available and will function as a "shame" list for employers that OSHA believes will "nudge" employers into compliance, allow members of the public to make decisions about which companies to engage in business and to allow employees to compare their workplace with those with superior health and safety records. These new recordkeeping requirements may have important implications on employee privacy and corporate PR efforts.

                          Individual Employer Establishments with 250 or More Employees

Individual employer establishments with 250 or more employees will be required to submit information electronically from their 2016 Form 300A by July 1, 2017. Beginning on July 1, 2018, these employers will need to submit information from all 2017 OSHA Forms (300A, 300 and 301) no later than July 1, 2018. Effective 2019 and each year thereafter, applicable employers will need to submit all their OSHA logs by March 2nd.

                          Individual Employer Establishments with 20-249 Employees

For smaller employers, OSHA will limit electronic submission to "high hazard industries" (e.g. nursing homes, department stores, construction, utilities), requiring the submission of Form 300A for year 2016 no later than July 1, 2017. Form 300A for year 2017 will need to be submitted by July 1, 2018. And starting in year 2019 onward, these employers will be required to submit all OSHA logs by March 2nd.

Recommended Best Practices for an OSHA-Compliant Workplace

Employers will undoubtedly face challenges in navigating the myriad of new health and safety regulations embodied in the final rule. While the enforcement authority of OSHA has greatly expanded, the power of employers to regulate health and safety issues in the workplace has been set back. The stakes for employers are great, particularly given OSHA's recent increase of fines and penalties by nearly 80 percent.

The new rule also mandates that employers notify employees about these changes. Toward this end, OSHA has issued an informational poster designed to inform workers about their right to report injuries or illness, without being retaliated against, and informing employers that it is illegal to retaliate against an employee for reporting an injury or illness.

Employers can - and should - adopt the following best practices to assist in their compliance with the new requirements:

  • Narrowly tailor blanket post-accident alcohol and drug testing policies to circumstances where there is a "reasonable suspicion" that substance abuse may have contributed to the accident.
  • Adhere to drug testing policies that comply with other existing state or federal laws (e.g. Department of Transportation regulations, workers' compensation laws) as such compliance measures are not retaliatory or designed to deter the reporting of injuries or illnesses.
  • Revise safety incentive programs to ensure that employees who report injuries or illnesses are not disqualified for awards or benefits (e.g. bonuses) while maintaining programs that reward employees for engaging in health and safety training and investigations.
  • Post the new OSHA informational poster in a clear and prominent work location to inform employees about their rights.
  • Review all employer policies to eliminate provisions that could be interpreted to "deter or discourage" a reasonable employee from accurately reporting a workplace injury or illness.
  • Review the educational materials and guidance that OSHA intends to release to aid employers in their compliance with the new anti-retaliation provisions.

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.

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