On August 10, 2016 new rules issued by the Occupational Safety and Health Administration go into effect related to injured workers. While OSHA has labeled the rule about electronic submission of injury data, the bigger news relates to post-accident drug and alcohol testing and safety incentive programs.
What is OSHA’s New Post-Accident Testing Rule?
The new rule will prohibit blanket post-accident testing, as OSHA views that kind of mandatory testing as a form of retaliation against employees. Soon, I suppose that retaliation will include not greeting each employee every morning with a warm “good morning” and hearty handshake (but no hugs, please; that’s harassment).
More seriously, OSHA’s take on blanket post-accident testing is that it may discourage employees from reporting workplace injuries. Of course, post-accident testing is still allowed; we just need to be more careful about why you are testing employees post-accident.
When Can I Do Post-Accident Testing?
OSHA says that testing should be limited to situations where 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.” In other words, testing can be done for most injuries caused by the employee’s lapses in judgment, failure to pay attention, or other times of the employee’s negligence.
Here is a quick reference for whether you can do post-accident testing:
| Probably Should Not Test | Probably Can Test (if your policies allow you) |
| Employee injures his wrist because repetitive stress due to his work as a mechanic | Employee injures his wrist while beating his computer keyboard because Outlook stopped working again |
| Employee’s ladder fails while changing light bulbs because of the ladder’s faulty design | Employee gets a glass shard in his eye when he and a coworker decide to reenact their favorite Star Wars fight scene with fluorescent light bulb “light sabers” |
| Employee gets stung by a bee | Employee decides that a bee hive on site is a piñata and gets repeatedly stung |
| Employee injures his leg when he is rear-ended through no fault of the employee | Employee accidentally stabs his own leg when he is juggling scissors preparing for his America’s Got Talent audition |
What if I am Required to Do Post-Accident Testing?
OSHA acknowledges that some state and federal laws, such as DOT, require testing for employees after each accident. In those cases, OSHA recognizes that the employer is not trying to intimidate workers, but rather follow other laws. So, employers required by law to test after each accident should continue with that practice.
Do I Need to Start Electronically Submitting Injury and Illness?
OSHA is requiring large employers (those with 250 or more employees) and medium-sized employers (those with 20 or more employees) working in high hazard industries to submit injury and illness information electronically from their 2016 Form 300A, which are due by July 1, 2017. For 2017 injury and illness reporting, all forms (300A, 300, and 301) will be due by July 1, 2018. Finally, OSHA will be moving the deadline to submit your forms to March 2 beginning in 2019 for 2018 reports.
What is a High Hazard Industry?
OSHA maintains a list of high hazard industries, which include agriculture, construction, manufacturing, general merchandise store, residential care facilities, and others. The full list can be found at https://www.osha.gov/recordkeeping/NAICScodesforelectronicsubmission.pdf. Somehow lawyering did not make the list. I’m curious if OSHA is aware of the number of lawyers training for their AGT auditions…
Changes to Safety Incentive Programs
Much like BOLI, OSHA is looking skeptically at employer-sponsored safety incentive programs. The new regulations broaden the prohibition on incentive programs, even when they are part of a broader compliance program.
In essence, OSHA is taking the position that individuals or groups of employees should not lose out on a bonus (an “adverse action”) because of a work-related injury.
While state and federal regulations continue to whittle away at employers’ options, OSHA encourages incentive programs that promote worker participation in safety-related activities, like identifying hazards or participating in investigations of injuries, incidents or near misses. OSHA also allows employers to create incentive programs that are based on employees being able to correctly follow legitimate safety rules, rather than a lack of reported injuries or illnesses.
What Do I Need to Do Now?
OSHA is requiring employers to inform their employees of the right to report work-related injuries and illnesses free from retaliation. You can meet this obligation by posting the OSHA “Job Safety and Health – It’s the Law” poster form April 2015, found in a variety of languages at https://www.osha.gov/Publications/poster.html to your ever-burgeoning poster board.
Employers should also update their handbooks on drug testing. Many employers have policies that read that mandatory testing will be done after each accident. OSHA can view that policy alone as retaliation, as it may deter some employees from reporting injuries.
Finally, OSHA is requiring employers to change policies that require employees to immediately report injury or be disciplined. OSHA’s concern is that these policies will discourage employees from reporting slow-developing or chronic injuries or illnesses. These policies should be changed to require employees to report injuries within a reasonable time after realizing that the employee is injured or ill.
Please contact David Briggs or a member of our employment team if you have questions about the information in this article. David can be reached at (503) 399-1070 or at dbriggs@sglaw.com.