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New OSHA rules set to take effect

Legal News Reporter

Published: November 9, 2016

For decades the U.S. Department of Labor Occupational Safety and Health Administration (OSHA) has mandated that employers keep track of their workers’ injuries and illnesses by recording the incidents on their onsite OSHA injury and illness forms.

But under a new final rule that takes effect on Jan. 1, OSHA will require certain businesses to electronically submit some of the information for posting to its website. The federal agency has stated that making the data public will “help keep workers safer and make employers, the public and the government better informed about workplace hazards.”

According to OSHA’s website, businesses with 250 or more employees that are already required to keep OSHA injury and illness records must electronically submit information from OSHA Forms 300 (Log of Work-Related Injuries and Illnesses), 300A (Summary of Work-Related Injuries and Illnesses) and 301 (Injury and Illness Incident Report).

Employers with 20 to 249 workers in certain industries like construction and manufacturing with historically high rates of occupational injuries and illnesses must electronically submit data from OSHA Form 300A.

The new rules are being phased in over two years, with all impacted companies being required to submit information from Form 300A by July 1, 2017. The following year, businesses with 250 or more workers will have to turn over data contained in Forms 300A, 300 and 301 and those with 20 to 249 employees will be required to provide information from Form 300A by July 1. Beginning in 2019, the deadline will be changed from July 1 to March 2.

OSHA will post the establishment-specific injury and illness data it collects under this rule on its public website (www.osha.gov).

Rachel Reight, an employee rights attorney at Baasten McKinley & Co, said the new rule would benefit workers since they would be able to identify low-risk workplaces.

“The rationale being that making this information available to the public will ‘nudge’ employers to focus on safety and prevent workplace injuries, thereby improving safety for workers,” said Reight.

Scott Gedeon, of counsel at the management-side labor and employment firm Fisher Phillips, said making the data public could lead to incorrect assumptions about a company’s workplace safety record.

“Just because an injury is recordable does not mean there has been a violation of OSHA rules or that there is a basis for a workers’ compensation claim,” said Gedeon. “Employees who view this information may incorrectly assume the company has an unsafe working environment.

“The rule could also lead to vendors or subcontractors not wanting to do business with a company,” said Gedeon.

The final rule also includes anti-retaliation provisions designed to encourage employees to report work-related injuries or illnesses. For example, the website says, “Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation. This obligation may be met by posting the OSHA Job Safety and Health — It’s The Law worker rights poster from April 2015 or later.”

It also says “An employer may not retaliate against employees for reporting work-related injuries or illnesses.”

This will improve the accuracy of the data being reported since there is a prohibition against retaliation,” said Reight.

In addition, OSHA makes it clear that reporting procedures must be “reasonable” and cannot “deter or discourage employees from reporting.”

“OSHA has taken a position that employers need to revisit their reporting policies,” said Gedeon. “Many companies require that injuries be reported immediately to a supervisor. OSHA has asked that the reporting policies be reasonable. For example, instead allowing a worker to report an injury at the end of a shift or within eight hours.”

“OSHA believes that immediate reporting policies may chill employees from reporting injuries that slowly develop or injuries where employees do not know or realize the extent of their injury at the time it occurs,” said Reight.

While the final rule does not specifically address post-accident drug and alcohol testing, in May 2016 OSHA commentary clarified its stance on mandatory post-accident drug testing.

According to OSHA’s website, “The rule does not prohibit drug testing of employees, including drug testing pursuant to the Department of Transportation rules or any other federal or state law. It only prohibits employers from using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness.”

In addition, random drug testing and pre-employment drug testing can also continue.

The website says that companies can conduct post-incident drug testing “if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness.

“However, if employee drug use could not have contributed to the injury or illness, post-incident drug testing would likely only discourage reporting without contributing to the employer’s understanding of why the injury occurred. Drug testing under these conditions could constitute prohibited retaliation.”

One example provided by OSHA in which post-accident drug testing would be prohibited is if an employee reports a repetitive stress injury like carpal tunnel syndrome. However, if a worker were to drive a forklift into a piece of stationary equipment and get hurt, a company could justify conducting a drug test since “Employee X’s conduct—the manner in which he operated the forklift—contributed to his injury, and because drug use can affect conduct.”

The anti-retaliation provisions of the final rule were supposed to take effect in August, but OSHA initially delayed implementation to Nov. 1. In a memorandum the agency stated it did so “to allow time for additional outreach to the regulated community.”

The memorandum was issued days after industry groups filed a lawsuit on July 8 in Texas federal court (TEXO ABC/AGC, Inc., et al. v. Perez), seeking to keep the provisions from being enforced, arguing they go too far in limiting post-accident drug testing.

On Oct. 14, the court asked OSHA to further delay enforcement of the employee involvement provisions of the final rule through Dec. 1 so it could have additional time to consider the motion in the Texas case. OSHA has agreed to do so.

“This rule interferes with the right of employers to maintain a workplace free from impaired employees,” said Gedeon.

Reight said the final rule does not stop employers from utilizing post-accident testing, it only requires that they “justify their decision based upon the facts of each workplace incident.”