This past May, the U.S. Department of Labor’s Occupational Safety and Health Administration issued a final rule to modernize injury data collection to better inform workers, employers, the public and OSHA about workplace hazards. Under the new rule, all establishments with 250 or more employees in industries covered by the recordkeeping regulation must electronically submit to OSHA injury and illness information from OSHA Forms 300, 300A, and 301.
Establishments with 20-249 employees in certain industries must electronically submit information from OSHA Form 300A only. “Nursing Care Facilities” are included in this group. After postponing the effective date of OSHA’s “new rule”, the current effective date is December 1, 2016. Employers will need to submit their 300A log to OSHA’s secure website by July 1, 2017. (The site is expected to go live February, 2017).
In addition, OSHA’s “new rule” includes anti-retaliation provisions. Employers are required to inform workers of their right to report work-related injuries and illnesses without fear of retaliation. Employers are required to implement procedures for reporting injuries or illnesses that are “reasonable” and do not deter workers from reporting.
Incentive programs that reward low-accident rates will be viewed as retaliatory. Procedures that require immediately reporting or attempt to limit the time to report an injury to a timeframe less than the time allowed by law, may be viewed as retaliatory.
OSHA now indicates that blanket, mandatory post-injury drug/alcohol testing is not reasonable and thereby, retaliatory. If employers wish to continue a post-injury testing policy, the test may only be done when it is “reasonable” that drugs could have contributed to the incident, or “reasonable” the incident could have been made worse if drugs or alcohol were involved. OSHA has also indicated that if multiple employees are involved in an accident where one person is injured, if the employer chooses to drug/alcohol test, all employees involved should be tested.
Recognize that accidents such as bee stings, repetitive injuries, mechanical failures, etc. probably are not generated from drug or alcohol use, therefore drug-testing may be difficult to justify.
