Summary
The Occupational Safety and Health Administration (“OSHA”) has agreed to further postpone enforcement of its new final rule, Improve Tracking of Workplace Injuries and Illnesses, until December 1, 2016. The agency also issued guidance explaining its position on incentive, disciplinary, and drug-testing programs.
Effective Date: Employee injury reporting requirements become effective on December 1, 2016. The requirements relating to the electronic submission of recordkeeping forms becomes effective on January 1, 2017.
Action Required: Inform employees of injury illness reporting requirements; post the most updated OSHA Job Safety and Health-Is the Law poster (April 2015 or later); revise post-accident drug testing policy.
Article:
OSHA’s final electronic recordkeeping rule, Improve Tracking of Workplace Injuries and Illnesses, covered in prior alerts, requires employers to establish reasonable procedures for reporting work-related injuries or illnesses. It also prohibits employers from retaliating or taking adverse action against employees who report work-related injuries or illnesses.
Delayed Enforcement of Anti-Retaliation Provisions
In response to a request from a federal judge, OSHA has agreed to extend the effective date of the “anti-retaliation” provisions of the rule until December 1, 2016. The provisions were originally set to become effective in August, but that date was further extended to November 1, 2016 to allow the agency additional time for outreach and education to the regulated community. The new extended deadline was requested to consider a preliminary injunction seeking to permanently delay the effective date of the standard until a decision is reached in the case.
Employers now have until December 1, 2016 to comply with OSHA’s anti-retaliation provisions, which require employers to (1) inform employees of their right to report work-related injuries and illnesses without fear of retaliation; (2) to implement reasonable procedures for reporting injuries and illnesses that do not discourage employees from reporting work-related injuries or (3) illnesses and prohibit employers from retaliating or discriminating against employees for reporting injuries and illnesses.
Guidance on Employer Programs
According to OSHA, certain types of disciplinary programs, incentive programs and post-accident drug testing deter employees from reporting work-related injuries or illnesses and violate the anti-retaliation provisions of the new rule. In an October 19, 2016, memorandum interpreting the new rule, OSHA explained the agency’s position in more detail and advised that “the rule does not ban appropriate disciplinary, incentive, or drug-testing programs.”
-Disciplinary Programs
Use of disciplinary action or the threat of disciplinary action to retaliate against an employee for reporting an injury or illness is prohibited. Examples of disciplinary programs that would violate the anti-retaliation provision are the following:
- Automatically suspending an employee who reports a work-related injury.
- Assigning employees points that have negative employment consequences for reporting a work-related injury.
- Pre-textual discipline, such as disciplining an employee for allegedly violating a safety rule but the real basis for discipline was the injury or illness report. Here, OSHA would look to see if other employees are also disciplined for violating the same safety rule in cases where a violation of that safety rule does not result in any injury.
- Rigid prompt reporting requirements, such as disciplining for not immediately reporting a work-related injury in cases where the employee has not yet had time to identify a work-related injury has occurred.
- A key aspect for any employer disciplinary program will be consistency and whether the employer applies the policy consistently to all employees – those injured and not injured.
-Incentive Programs
According to OSHA, “employers must not use incentive programs in a way that penalizes workers for reporting work-related injuries or illness.” Rather, OSHA recommends incentive programs that reward for employee participation in safety program activities and evaluations, completion of employee training, and safety walkthroughs and identification of hazards.
-Post-Accident Drug Testing Programs
As previously reported, OSHA indicates in the final rule that post-accident drug testing could be considered a practice that would discourage employees from reporting work-related injuries or illnesses and therefore could be a discriminating practice. “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.” Under the new rule, employers must have reasonable suspicion that drug use contributed to the accident before conducting a post-accident drug test.
OSHA offers as an example the testing of an employee who is injured as by-stander. Such testing would violate the new rule because the injury could not possibly have been caused by drug use. In contrast, drug testing an employee who is injured when he inadvertently drives his forklift into another piece of equipment would not violate the rule because the employee’s “conduct – the manner in which he operated the forklift – contributed to his injury, and because drug use can affect conduct.”
Additionally, OSHA originally indicated that only drug tests that can indicate impairment at the time of the injury or illness would be permissible. In the memorandum, however, the agency clarified that “OSHA will consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available. Therefore, at this time, OSHA may consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.”
If you participate in the ADP TotalSource Drug Free Workplace Program, we will provide you with a revised policy based on OSHA’s guidance.
For additional information, please contact your Human Resources Business Partner.