New OSHA Rule Limiting Post-Incident Testing Goes Into Effect; Anti-Relation Provisions Put On Hold

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06/27/2017

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New OSHA Rule Limiting Post-Incident Testing Goes Into Effect; Anti-Relation Provisions Put On Hold

By Greg Blueford

A revised OSHA rule, Recording and Reporting of Occupational Injuries and Illness, which went into effect August 10, 2016, reduces the ability of employers to conduct post-accident/incident alcohol and drug testing, changes the manner in which injury and illness are reported, and prohibits any policies that may deter reporting of workplace injuries.


1. Blanket Drug Testing Deemed To Deter Workplace Incident Reporting

Under the new OSHA rule, blanket post-incident drug testing is no longer allowed because it may deter reporting of workplace injuries. Thus, all post-incident drug testing is now limited to “situations in which employee drug use is likely to have contributed to the incident and where a drug test can accurately identify impairment caused by drug use.” As support, OSHA submittted the following example:


“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 lack of machine guarding or a machine or tool malfunction. Such a policy is likely only to deter reporting without contributing to the employer’s understanding of why the injury occurred, or in any other way contributing to workplace safety.”


As the phrase “accurately identify impairment” is obviously vague, the example demonstrates that post-incident drug testing is only appropriate in situations where impairment may have actually been the cause of injury. In addition, OSHA notes that drug testing pursuant to a state or federal law or regulation (i.e. Worker’s Compensation or Department of Transportation regulations) isn’t a violation of the new rule as the employer’s motive is not retaliatory.


2. Employers Who Are Required To Submit OSHA Logs Electronically

Employers, based on their size, will be required to submit OSHA logs electronically. The record keeping requirements are as follows:

- Individual Employer Establishments with 250 or More Employees: Must electronically submit their 2016 Form 300A by July 1, 2017. Beginning in 2018, all 2017 OSHA Forms (300A, 300 and 301) must be submitted electronically no later than July 1, 2018. Effective 2019 and each year thereafter, all OSHA logs must be submitted by March 2nd.

- Individual Employer Establishments with 20-249 Employees: Applies only to "high hazard industries" (e.g. nursing homes, department stores, construction, utilities). Must electronically submit Form 300A for year 2016 no later than July 1, 2017. Form 300A for year 2017 will need to be submitted by July 1, 2018. And starting in year 2019 onward, these high hazard employers will be required to submit all OSHA logs by March 2nd.


3. OSHA “Anti-Retaliation” Rules Delayed Based On Uproar

The new rule forbids and considers a form of retaliation any safety incentive program that disincentivizes health and safety reporting, such as denying workers a safety bonus due to the injury report of a single employee. Only safety programs that reward participation in safety-related activities, such as following safety rules, will be acceptable.

Also, OSHA may monetarily penalize employers who discipline employees for reporting injuries and illness, up to six months after the alleged violation, even where the employee has not filed a formal complaint. Previously, OSHA only investigated employer retaliation after a complaint was filed, which had to be done within 30 days. Also, employers are prohibited from disciplining employees who fail to immediately report an injury or illness and must allow a “reasonable time” to report an injury or illness as some injuries develop over time and are not immediately noticed.

As expected, these anti-retaliation rules have caused enough of an uproar to delay their enforcement policies until November 1, 2016 so OSHA may “conduct additional outreach and provide educational materials and guidance for employers” regarding these aforementioned rules.


COUNSEL TO MANAGEMENT:

Blanket policies that require drug testing after any workplace accident or incident will be considered a form of adverse action by OSHA. All employers should review their policies regarding post-incident testing for language that could be interpreted as mandatory testing. Further, Employers should review all safety and reporting policies to ensure they do not deter employees from reporting workplace incidents and should always keep the most updated OSHA information posters in clear and prominent places so that employees are informed of their rights. Please contact The Saqui Law Group with any questions or concerns regarding OSHA regulations.

 


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