Hill: All About OSHA's Electronic Reporting, Retaliation and Post-Accident Drug Testing Rule

Wednesday, December 14, 2016 | 0

Occupational Safety and Health Administration (OSHA) standards cover everything from job site drinking water to fall protection, and keeping up with all of OSHA’s specific guidelines can be difficult for employers.

Woody Hill

At Texas Mutual, we pride ourselves on being an important resource for safety-conscious employers in Texas, so we’ve provided the following information on one of OSHA’s newest rules: Improved Tracking of Workplace Injuries and Illnesses. Let’s take a closer look at the rule and clear up some common misconceptions.

The rule includes two components: anti-retaliation, which went into effect Dec. 1, 2016, and electronic injury and illness reporting, which takes effect Jan. 1, 2017. 

OSHA reasons that the anti-retaliation component must be put in place first, because it is necessary so that employees will provide accurate data under the reporting component. 
The anti-retaliation component includes three provisions: 

• Employers must inform employees of their right to report work-related injuries and illnesses, free from retaliation. Employers can fulfill this obligation by posting the Job Safety and Health — It’s The Law poster. OSHA also recommends employers make it clear in their employee handbooks and new employee orientation materials that employees have the right to report workplace injuries.
• An employer’s procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting. For example, procedures that do not allow a reasonable amount of time for an employee to realize they have suffered a work-related injury or illness could violate this provision. 
• An employer may not retaliate against employees for reporting work-related injuries or illnesses. OSHA cites three types of policies that could be considered retaliatory under this provision: disciplinary policies, drug-testing policies and incentive policies.

The rule does not prohibit an employer from disciplining employees for violating legitimate safety rules, even if that employee was injured as a result of the violation. The rule does, however, prohibit retaliatory, adverse action against an employee as a result of reporting a work-related injury or illness. Examples include suspension, harassment, reassignment and termination.

The rule does not prohibit employee safety incentive policies, but it does prohibit incentive programs that deter or discourage an employee from reporting an injury or illness. Incentive programs should encourage safe work practices and promote worker participation in safety-related activities.

The new rule does not prohibit post-accident drug testing, but it does stipulate that if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing doesn’t identify impairment but only use at some point in the recent past, a drug test might inappropriately deter reporting.

For example, it would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury or an injury caused by a falling object. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory, and testing would not be prohibited.

The electronic injury and illness reporting component requires certain employers to electronically submit the injury and illness information they are already required to keep under OSHA regulations. OSHA designed this component to increase accountability and prevent injuries. As stated above, the electronic submission requirements take effect Jan. 1, 2017, but OSHA will phase them in over time.

For more information about the Improved Tracking of Workplace Injuries and Illnesses rule, see OSHA’s fact sheet and list of frequently asked questions. If you still have questions about the rule, contact your local OSHA office or the Occupational Safety and Health Consultation program.

Woody Hill is vice president of safety and information services for Texas Mutual Insurance Co. Austin-based Texas Mutual Insurance Co. is the leading provider of workers’ compensation insurance in Texas.