The Occupational Safety and Health Administration (OSHA) recently issued new rules regarding the documentation of work-related accidents or incidents. The documentation ruling (which takes effect January 1, 2017) calls for electronic filing with OSHA of injury and illness reports by certain high-risk industries; however, this new ruling does not change the current obligation for employers to complete, retain, and certify injury and illness records. Reports will be made public; which OSHA believes will lead to a higher focus on safety. The amount and frequency of data submission vary by type of industry and size of a company’s location. In addition to the electronic reporting requirement, some of the other areas sited in this new ruling are listed below.
The new rule encourages workers to report injury or illness, improves the accuracy of reports, and prohibits companies from retaliation against the employee. By November 1, 2016, employers must:
- Inform employees about their right to report work-related injuries and illnesses
- Tell them about the prohibition against company retaliation after reporting
- Establish a reasonable reporting process that doesn’t deter or discourage filing a report
Post-Incident Drug Testing
With these newly issued rules, OSHA has also taken the position that a policy of mandatory drug testing after all incidents is considered a form of adverse action which could deter a worker from reporting. Additionally, in a case where drugs are clearly not a factor in an incident it constitutes a violation of privacy.
It is not OSHA’s intent to ban drug testing, but by this ruling, employers must restrict automatic drug testing to situations in which:
- There is a reasonable possibility that drug use by the reporting employee is likely to have been at least a contributing factor in the incident.
- The drug test can accurately identify worker impairment by drug use at the time of the incident; therefore, the timing of the drug test is critical.
Phase-In of Compliance Schedule
The new reporting requirements will be phased in over two years. Companies with 250 or more employees in industries covered by the record-keeping regulation must submit information from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.
Companies with 20-249 employees in certain high-risk industries must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.
OSHA State Plan states must adopt requirements that are substantially identical to the requirements in this final rule within 6 months after publication of this final rule.
Evaluate Your Policy – We Can Help
If you have a blanket policy, you should discard it and create a new policy that clearly states when an employee’s action, or inaction, is suspected to be caused or affected by the use of drugs, will require drug testing. This ruling does not eliminate drug testing that complies with state or federal laws and regulations.
Call us if you need help getting your policy in line with these new rules.