Those of you who attended our summer Breakfast Briefing session learned of the new OSHA rules that mandate employers to inform employees that they have a right to report work-related injuries and illness free from retaliation and ensure that the reporting procedure for work-related injuries and illnesses be “reasonable.” These new rules were to take effect August 12, 2016 but have been placed on hold until November 1, 2016.
The reason OSHA cites for delaying implementation of its new rules is that is wishes to “conduct additional outreach and provide educational materials and guidance for employers.” As we have informed many of you, there are currently legal challenges to the new rule and perhaps OSHA is intending to better explain its new rule in a future guidance. Although we do not anticipate any changes to the basic requirements of the new rule, we do recommend that you await receipt of the soon-to-be-issued guidance before you update your policies.
In preparing for the November 1, 2016 date of implementation, keep in mind the following basics of OSHA’s new rule:
- Accident and illness reporting procedures deemed to be “retaliatory” by OSHA are described as those that discipline for failure to immediately report a work-related injury or illness. OSHA’s new rule would require reporting of work-related injuries and illnesses within a reasonable timeframe after the employee has realized that s/he has suffered a work-related injury or illness.
- Examples of “unreasonable” reporting procedures are those that deter or discourage reporting, such as mandatory post-accident drug and alcohol testing policies that are not required under federal or state laws and incentive programs that offer benefits to employees or workforces who do not report injuries and illnesses.
- The new rule also permits, for the first time, OSHA compliance officers to issue citations for what it perceives as acts of retaliation by an employer, thereby imposing upon employers an immediate and expensive enforcement procedure.
In reviewing your post-incident drug policy, keep in mind that the new OSHA rule does not affect federal and state mandated drug testing, such as Department of Transportation post-incident drug testing. However, this exception does not include the Ohio Bureau of Workers’ Compensation Drug Free Safety Program (DFSP), which does not mandate post-incident drug testing in all cases.
The BWC’s DFSP rules relating to post-incident drug tests, unlike the Department of Transportation’s rules, state that a post-incident test does not have to be conducted if all of the following circumstances exist:
- The accident resulted in a minor injury, even when off-site medical attention was required;
- There was no violation of work rules;
- An accident investigation determined there was no reasonable suspicion related to the accident;
- The accident is considered normal in relationship to the job functions of the injured employee.
As becomes clear, assuming the new OSHA rule remains unchanged as of November 1, 2016, employers who are in the DFSP or whose drug testing policies are based on the DFSP will need to modify their post-incident testing procedures and be prepared to substantiate the basis for testing when a workplace incident results in drug testing.
We will provide further updates as OSHA releases its guidance.