To strengthen its efforts against retaliation, OSHA inspectors may now cite an employer for retaliation and require abatement, even if no formal retaliation complaint has been filed by an employee.
Post-accident drug testing
As part of these new regulations, OSHA took a strong line against post-accident drug/alcohol testing. In the preamble to the regulations, OSHA stated:
“Although drug testing of employees may be a reasonable workplace policy in some situations, it is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.”
“To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use. 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.”
The new rules do not create a blanket prohibition against post-accident drug testing. In some cases, drug testing may be required by other laws or regulations (like DOT post-accident testing requirements). However, OSHA will evaluate whether the employer’s use of drug testing has a retaliatory motive against employees who report work-related injuries or illnesses.
Employers covered by federal OSHA must comply with these new provisions by November 1, 2016. (The original effective date was August 10, 2016. However, OSHA delayed the effective date to provide outreach to employers.) For employers covered by a state plan (like Michigan), the state must adopt substantially identical regulations within six months (although this process may take longer if legislative action is required to make the change).
Employers with employees outside of Michigan should review their accident/illness reporting and post-accident drug/alcohol testing policies prior to November 1, 2016. Employers with employees only in Michigan may wish to wait until Michigan adopts a rule on these issues.
OSHA is also requiring certain employers to file injury and illness data electronically with OSHA. OSHA intends to post some of this information on its website. OSHA believes public disclosure will encourage employers to improve workplace safety.
Establishments with 250 or more employees that are currently required to keep injury and illness reports will be required to submit information from the establishment’s OSHA Forms 300 (Log of Work-Related Injuries and Illnesses), 300A (Summary of Work-Related Injuries and Illnesses) and 301 (Injury and Incident Report) to OSHA. Establishments with 20 or more employees, but fewer than 250 employees, that conduct work in designated industries will be required to provide information from OSHA Form 300A to OSHA. The list of designated industries can be found at: https://www.osha.gov/recordkeeping/NAICScodesforelectronicsubmission.pdf
To determine the number of employees, an employer must count each individual employed at any time during the calendar year, including full-time, part-time, seasonal and temporary workers.
This new reporting requirement will be phased in. By July 1, 2017, covered employers will be required to submit the required information from Form 300A for the prior calendar year. By July 1, 2018, covered employers with more than 250 employees that are not exempt from keeping injury and illness reports will be required to submit information from Forms 300A, 300 and 301. Also by July 1, 2018, employers with 20 employees, but less than 250 employees in designated industries, will be required to submit information from Form 300A. After 2018, covered employers will be required to submit this same information by March 2 each year.
States like Michigan, with separate state health and safety plans, are generally required to adopt requirements that are substantially identical to the new OSHA requirements within six months after the publication of the final rule (May 12, 2016).