By Kristin Bremer Moore and Lindsay Reynolds
The Occupational Safety and Health Administration issued a new rule, effective December 1, 2016, which includes three provisions designed to promote complete and accurate reporting by employees of work-related injuries:
- Employers must inform their employees of their right to report work-related injuries and illnesses free from retaliation. This requirement may be satisfied by posting already-required OSHA workplace posters.
- Employers' procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting.
- Employers may not retaliate against employees for reporting work-related injuries or illnesses.
Reasonable Reporting Procedures and Changes to Employers' Post-Accident Alcohol and Drug Tests
The new rule requires employers to "establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately," and expressly states that a procedure would be unreasonable "if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness[.]" OSHA advises that employer drug and alcohol policies that require post-accident testing likely will violate the new rule because such a blanket policy may deter employees from reporting accidents.
Under the new rule, OSHA has announced that employer drug and alcohol testing policies should limit post-accident testing to situations in which: (1) the employee is involved in the accident; (2) drug or alcohol use is likely to have contributed to the incident; and (3) the test is capable of determining actual impairment rather than only how recently the individual consumed the drug or alcohol. Thus, employers with blanket post-accident testing policies will likely run afoul of the new rule and could face penalties from OSHA for any unlawful testing under the policy.
Anti-Retaliation Provision
The new rule also includes added anti-retaliation protections that prohibit employers from discouraging workers from reporting an injury or illness. OSHA already prohibits any person from discharging or otherwise discriminating against an employee who reports a workplace fatality, injury, or illness. Under the former rule, however, OSHA could not act unless an employee filed a complaint with OSHA within 30 days of the retaliation. Now, OSHA will be able to cite an employer for retaliation even if the employee did not file a complaint, or if the employer's program is found to deter or discourage reporting through the threat of retaliation.
Changes in Oregon
In response to the federal changes, Oregon OSHA has made changes to its regulations to reflect the federal OSHA's final rule changes. The changes to the Oregon regulation go into effect May 1, 2017.
Next Steps for Employers
In light of these changes, employers should do the following:
- Employers should review post-accident drug and alcohol testing policies and either (1) revise any blanket post-accident testing policies to limit post-accident testing to situations where it appears drug or alcohol use caused or contributed to the accident, or (2) change the policy to reasonable suspicion testing, which would expand testing beyond accidents to include all situations where the employer has reason to suspect drug or alcohol use.
- Employers should review their policies to make sure they have a clear workplace injury reporting procedure in place, and notify all employees that they have a right to report work-related injuries and will not be discriminated or retaliated against for reporting such injuries
- Employers should also prepare to submit these workplace injury reports electronically. For federal reporting requirements, OSHA will establish a secure website for the electronic submission of information. The website will include web forms for direct data entry and instructions for other means of submission. Oregon OSHA will likely have a similar system in place.
You can find a copy of the final rule here: https://www.federalregister.gov/documents/2016/05/12/2016-10443/improve-tracking-of-workplace-injuries-and-illnesses.
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