The U.S. Occupational Safety and Health Administration (OSHA) recently published a final rule to “Improve Tracking of Workplace Injuries and Illnesses.” The full text of the rule can be found here. The rule requires electronic submission of work related injury data for some employers. In addition, the rule serves to prevent employers from illegally discriminating and/or retaliating against employees for reporting work related injuries and illnesses. This means employers may no longer be able to use post-injury drug testing for all work related injuries. The new rule will be enforced beginning November 1, 2016.
The new electronic reporting requirement is effective January 1, 2017. Companies with 250 or more employees in industries covered by the recordkeeping regulation will be required to submit information from all OSHA Forms (300A, 300 and 301) while companies with between 20 and 249 employees in certain high-risk industries (click here for the list of industries) will be required to submit the data from their Form 300A only. It is important to note that all of the information that will need to be reported is already required on these forms by employers. The only new requirement is that the data be electronically submitted to OSHA.
The deadlines for submission are as follows:
- Data year 2016: submission deadline July 1, 2017
- Data year 2017: submission deadline July 1, 2018
- Data year 2018 and beyond: submission deadline March 2 of the following year
As part of the anti-retaliation portion of the new rule, employers must have in place a “reasonable” procedure for reporting workplace related injuries and illnesses which does not discourage employees from reporting an injury or illness. One such procedure which can be seen as unreasonable is an automatic or “blanket” post-injury drug testing policy that requires all employees who are injured on the job, regardless of the type of injury, to be subject to a drug test. This type of policy can be seen as discouraging an employee from reporting an injury or as an adverse action taken against an employee for reporting the injury.
The rule does not completely prohibit all post-injury drug testing policies, but it is suggested that drug testing should be used only when there is reason to believe drug use may have contributed to the injury that took place. The commentary on the Federal Register regarding the new rule lists examples of types of accidents/injuries which would not likely be due to drug use such as a bee sting, an injury due to repetitive motion, or an injury due to a malfunctioning machine or tool. Employees with these example injuries should not be sent for drug testing as drug use did not contribute to the injury occurring.
The OSHA rule does acknowledge that many states allow for workers’ compensation premium discounts for companies with drug-free policies. These types of programs are still permitted and employers can continue to enforce a drug-free policy to take advantage of these discounts.
Employers should evaluate their current post-injury drug testing policies to make sure they are in compliance with the new rule prior to the November 1, 2016 effective date.