United States: New OSHA Requirements For Employee Involvement And Employer Recordkeeping Take Effect Over The Next Two Months

Earlier this year, the Occupational Safety and Health Administration (OSHA) issued its final rule to Improve Tracking of Workplace Injuries and Illnesses.  The new rule has two components – one relating to employee involvement, which takes effect on December 1, 2016, and the other relating to employer recordkeeping, which will be effective January 1, 2017.

Employee Involvement

The employee involvement provisions of the final rule are threefold and require employers to ensure all of the following:  (1) the procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting; (2) employees must be informed of their right to report work-related injuries and illnesses free from retaliation; and (3) employers may not retaliate against their employees for reporting work-related injuries or illnesses.

But, practically, what do these requirements mean for employers come December?  We'll address the impact of each provision below, starting with the provision that likely affects employers the most.

Reasonable Reporting Procedure That Does Not Discourage:

Although employers were always required to establish a means for employees to report a work-related injury or illness, the new rule explains that the procedure must not deter or discourage an employee from reporting.  This means that the employer's procedure must be in writing and it must be understandable to a reasonable employee.  There should not be any onerous reporting requirements, such as traveling a significant distance or contacting multiple levels of management to make a report.

However, the rule's most significant impact relates to an employer's ability to require post-incident drug testing.  Because OSHA claims post-incident drug testing may discourage employees from reporting, under the new rule, an employer may only conduct post-incident drug testing if there is a reasonable possibility that the employee's drug use could have contributed to the injury or illness.  This means that it will be problematic if an employer automatically requires all employees to submit to a post-incident drug test.  Instead, the particular incident will have to be reviewed to determine whether it could be related to drug use by the employee.

OSHA has attempted to explain this seemingly vague requirement with a few examples.  According to OSHA, if an employee is injured as an innocent bystander, it may be a violation if the employer requires the employee to submit to a post-incident drug test.  By contrast, the employer might not be in violation if it requires a post-incident drug test for an employee who was injured while operating a crane or forklift if the employee's conduct contributed to the injury.  Additionally, employers must ensure that any drug testing is performed at a time and in such a manner as to reveal evidence of alleged impairment.  Of note, employers will still be able to drug test all employees who report a work-related injury if the drug testing is conducted pursuant to a state workers' compensation law (or to an identical private policy), whether the law is voluntary or mandatory.

Ensuring Employees Are Informed:

After a reasonable procedure is in place, employers must ensure their employees are informed of their right to report.  OSHA does not provide a specific means to accomplish this requirement, but there are a few simple options that could suffice.  Employers can post the current version of the OSHA poster or they can provide a written or e-mail notice to each employee.

Anti-Retaliation Provision:

Although retaliation has always been prohibited, OSHA is now permitted to issue citations to employers who retaliate against their employees for reporting an injury or illness.  This anti-retaliation provision also impacts an employer's ability to enforce certain disciplinary and incentive programs.  The rule prohibits disciplining employees simply because they report work-related injuries or illnesses without regard to the circumstances of the injury or illness, such as automatically suspending workers who report an injury or assigning them points with future employment consequences.  Similarly, employers cannot use incentive programs in a manner that penalizes workers who report work-related injuries or illnesses.  For example, employers may be in violation if they automatically cancel an incentive program based on an employee reporting an injury, without regard to whether the injury violated a legitimate work rule.

With the final rule becoming effective next month (after enforcement has been delayed several times as a result of legal challenges), now is the time for employers to review their policies and procedures relating to reporting work-related injuries, including any automatic drug-testing requirement.  And it is now more important than ever that employers ensure they are in compliance since, as we explained last year, OSHA is now authorized to significantly increase its civil penalties.

Employer Recordkeeping

Although not as immediate as the employee involvement provisions, the employer recordkeeping provisions are also important to review.  The provisions require employers to electronically submit injury and illness data to OSHA, with data now being posted to OSHA's website for public view.

Effective January 1, 2017, establishments with at least 250 workers must annually submit to OSHA data from their OSHA Forms 300, 300A and 301 electronically.  The 2016 Form 300A must submitted by July 1, 2017.  Establishments with 20 to 249 employees in certain high-hazard industries (including agriculture, utilities, construction, and manufacturing) must also electronically submit information from their OSHA Form 300A, with the 2016 form due by July 1, 2017.

Thus, employers should now begin to compile their 2016 data so that they are prepared to submit it electronically by the due date.

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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