In our July 2016 newsletter, we advised you that Occupational Safety and Health Administration (OSHA) recently published a new rule regarding workplace injury reporting, the first phase of which was originally scheduled to take effect on 8/10/16. Shortly thereafter, a number of employers and employer groups filed suit challenging OSHA’s new rule with the US District Court for the Northern District of Texas. The court requested that the rule be delayed to allow additional time to consider a pending motion challenging the rule. As a result, OSHA changed the effective date of the first phase of the rule to 12/1/16. Here is what employers need to know about the new rule:
Beginning on 12/1/16, the rule will require employers to have a reasonable procedure for reporting work accidents. Employers’ reporting policies must:
- Expressly state that employee have a right to report work injuries and illnesses;
- Provide a reasonable procedure for employees to report workplace injuries and illnesses;
- Not discourage employees from reporting injuries or illnesses;
- Assure employees that the employer will not discriminate or retaliate against them for reporting a work injury or illness.
OSHA will consider unreasonable any rule requiring immediate reporting, especially if this may lead to discipline. OSHA will consider it to be reasonable to require employees to report injuries as soon as reasonably known or recognized by the employee.
OSHA also prohibits employers from providing incentives or disincentives for employees to report workplace injuries. Notably, OSHA will consider automatic post-injury drug testing to be a disincentive. Instead, employers who would like to conduct post-injury drug testing must make an individualized assessment of whether the potential use of drugs or alcohol caused the injury.
On 1/1/17, employers will be required to electronically submit injury and illness reports to OSHA. This means increased exposure for penalties and citations from OSHA. Moreover, OSHA announced it intends to post this information on its website. While some believe that this will incentivize employers to work to reduce injuries and provide public health researchers an opportunity to study injury causation and prevention, this will also make it easy for third-parties, such as Plaintiff’s attorneys, to generate increased litigation.
Employers who do not have an injury reporting procedure should create one. Employers should carefully revise any policies they may have for automatic post-accident drug testing to provide for an individualized assessment. Additionally, employers should train their supervisors on reporting procedures, how to conduct an individualized assessment and avoiding retaliation.