Michigan is in the process of adopting the revised OSHA Recording and Reporting Occupational Injuries and Illness Standard. In a recent conversation, the MiOSHA Management & Technical Services Division Director confirmed that a revised Michigan Recording and Reporting Occupational Injuries and Illness Standard should go into effect in January of 2017.
The revised Michigan Standard will require employers with 250 or more employees to submit information from Forms 300A, 300 and 301 to MiOSHA. Employers with 20 or more employees in designated industries will be required to submit information from Form 300A to MiOSHA. The first submission deadline for providing information from the Form 300A will be July 1, 2017. The revised Standard also will require all covered employers to inform workers of their right to report work-related injuries free from retaliation. Finally, the revised Standard will require employers to have reasonable procedures for reporting work-related injuries. Those procedures may not deter or discourage employees from reporting work-related injuries or illnesses.
Employers should review their current policies and practices to ensure compliance with the revised Standard. In particular, employers need to review their drug/alcohol testing policy to ensure that it does not deter the reporting of work-related injuries. Federal OSHA takes the position that post-accident drug testing of employees who report work-related injuries or illnesses may not be done without an objectively reasonable basis for the test (unless another law mandates the test). In a memorandum dated October 19, 2016, OSHA provided the following guidance to regional administrators:
When evaluating whether an employer had a reasonable basis for drug testing an employee who reported a work-related injury or illness, the central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness. If so, it would be objectively reasonable to subject the employee to a drug test.
The memorandum gives examples of when drug testing would and would not be considered to be reasonable. The memorandum provides that it would most likely not be reasonable to drug test an employee for reporting a repetitive strain injury because drug use could not have contributed to the injury. However, it may be reasonable to drug test an employee in the following situation:
Consider the example of a crane accident that injures several employees working nearby but not the operator. The employer does not know the causes of the accident, but there is a reasonable possibility that it could have been caused by operator error or by mistakes made by other employees responsible for ensuring that the crane was in safe working condition. In this scenario, it would be reasonable to require all employees whose conduct could have contributed to the accident to take a drug test, whether or not they reported an injury or illness.
This memorandum also addresses when issuing discipline to injured employees may be considered to violate these rules. Read the full memorandum here.
Given OSHA’s interpretation of these rules, employers should evaluate their current policies to determine if any of their policies deter employees from reporting work-related injuries or illnesses.
If you would like assistance with this issue, please contact Karen VanderWerff at 616.752.2183 or any other member of the Warner Norcross + Judd Labor Group.