On May 12, 2016, the Occupational Safety and Health Administration (“OSHA”) published new final rules impacting employers. These rules affect the reporting of workplace injuries, and may also require employers to reevaluate various policies. The most significant changes are summarized below.
Certain Workplace Injury Data Now Viewable by the Public
As of January 1, 2017, certain employers will be required to submit workplace injury data electronically to OSHA to be posted on OSHA’s public website. This new rule does not alter employers’ record-keeping requirements; rather, it is designed to motivate employers to focus on employee safety by making the information available to investors, job seekers, customers, and the broader public. It also allows employers to compare their health and safety data to other businesses in their industry.
Which Employers Must Electronically Submit OSHA Forms?
(1) Establishments with 20-249 employees in certain industries (as identified here) must electronically submit Form 300A to OSHA. Some of these industries include manufacturing, grocery stores, express parcel delivery services, construction, and general freight trucking.
(2) Establishments with 250 or more employees—unless exempt—must electronically submit Forms 300, 300A, and 301 to OSHA. (You can find a list of exempt industries here.) Establishments subject to this requirement include, among others, grocery stores and express parcel delivery services.
Employers May Need to Revise Their Post-Accident Drug- and Alcohol-Testing Policies and Procedures
In order to ensure workplace injury reporting is accurate, OSHA seeks to prohibit employers from deterring or discouraging employees from reporting workplace injuries. On the basis that post-accident drug and alcohol testing may deter employees from reporting workplace injuries, OSHA recommends that employers revise their policies to reflect the following:
(1) Employers should only conduct post-accident drug and alcohol testing when alcohol or drug use is likely to have contributed to the incident; and
(2) Employers should only use drug-testing procedures that detect whether an employee is actually impaired, as opposed to whether the employee recently engaged in drug or alcohol use.
Examples of injuries where drug testing would not be appropriate under this guidance might include bee stings, repetitive-strain injuries, and machine or tool malfunctions.
Employers Must Institute Reasonable and Non-Retaliatory Reporting Procedures
Although prior OSHA rules already prohibited retaliation, the new rule requires employers—no later than November 1, 2016—to institute anti-retaliation procedures surrounding the reporting of workplace injuries that include following:
(1) Employers must tell their employees about their right to report work-related injuries and illnesses without the threat of retaliation.
(2) Employers’ procedures for reporting illnesses and injuries must be reasonable, and must not discourage accurate reporting. A policy requiring employees to report injuries immediately or else face discipline, for example, is too rigid to be reasonable under the new rule.
In light of this guidance, this is a great time for employers to review and update their drug-testing and injury-reporting policies and procedures. Please give the attorneys at BurnsBarton a call if you would like help ensuring that your policies comply with all of the requirements of OSHA’s new rules.
