Several new rules by the Occupational Safety and Health Administration (OSHA) are going into effect today that require employers to take action. First, OSHA now requires employers with more than 250 employees (and for some industries as little as 20 employees) to electronically submit data regarding injuries to OSHA. Employers are also still required to retain and certify injury and illness records. OSHA's goal is to help track workplace injuries and illnesses. OSHA will post an employer's injury data on its public website (www.osha.gov). However, to protect confidentiality, OSHA will not collect the names, addresses or doctors. Employers are also still required to post the "OSHA Job Safety and Health: It's the Law" poster which discusses the right of employees to report injuries and illnesses. Posters issued after April of 2015 comply with this requirement.
The rule was also created in an effort to help employers track their safety records compared with others in their industry. In addition, OSHA will now be able to cite an employer for retaliation without the employee filing a complaint.
Another aspect of the rule is the effect of post-accident drug testing. Many employers perform drug testing on all employees involved in an accident. The new rule will make such broad policies retaliatory. The new rule does not prohibit drug testing of employees following a workplace incident. Rather, it attempts to correct procedures for reporting work-related injuries and illnesses that may deter or discourage employees from reporting. The intention is that an employee should feel he or she can report an accident even if the worker would test positive on a drug or alcohol test and face discipline or termination. However, it is important to keep in mind that the rule prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. 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 this rule would not prohibit such testing. Therefore, an employer must look at each work accident on a case-by-case basis before automatically testing. It is important to train those responsible regarding which situations are permissible for drug tests.
An example often given is when you have an employee who is driving a forklift and strikes another employee, causing both employees injury. Under the new rules, only the forklift driver can be drug tested, while the other employee cannot. The employee who was hurt, but not driving, had no culpability in the accident and a positive drug test would have no impact on why the incident occurred. If the struck employee were to be tested, that action would be considered retaliatory. Clearly, the driver of the forklift may be tested for drugs or alcohol since the cause of the accident could have been a result of impairment due to the use of drugs and/or alcohol.
Comment: Since the Post-Accident Drug Testing rule will be enforced effective December 1, 2016, it is imperative that you review your post-accident policies and update accordingly to ensure they are in compliance with the rule. Should you have any questions or need your policies reviewed, please feel free to reach out to us to discuss how we can be of assistance.
Sara L. De Long