The Occupational Safety and Health Administration (OSHA) issued a final rule impacting employer incident reporting. The rule takes effect in two phases – August 10, 2016, and January 1, 2017.
Effective January 1, 2017, firms with more than 250 employees, and businesses in high-risk industries with 20-249 employees, will be obligated to submit an online account of injury and illness data that they are already required to record. The data will be available on OSHA’s website in hope that employers will improve workplace safety and hold themselves accountable during the recordkeeping process.
The requirements for the two types of employers varies slightly as noted below.
| Employers with more than 250 employees (at any point during the previous calendar year) | Employers with 20-249 employees (at any point during the previous calendar year) and classified as high-risk | |
| Annual online submission | Must submit information from Forms 300A, 300 and 301 | Must submit information from Form 300A |
| What's required? |
Everything on Forms 300A, 300, and 301 Form 300: Form 301: |
Everything on Form 300A |
| Reporting deadline | Information from 2016 Form 300A by July 1, 2017. All 2017 forms by July 1, 2018. Starting in 2019, by March 2 | Information from 2016 Form 300A by July 1, 2017, and 2017 Form 330A by July 1, 2018. Starting in 2019, by March 2 |
Post-accident drug testing could be unreasonable
Other provisions, effective August 10, 2016, (enforcement delayed until November 1, 2016) concern how employees report work-related injuries and illnesses. Specifically, employers must notify employees of their right to report any work-related injuries/illnesses free from retaliation. Additionally, the reporting process must be “reasonable.”
According to OSHA, a procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness. Unreasonable reporting policies that could deter reporting include disciplinary policies, safety incentive programs and post-accident drug testing policies.
The new rule states in the preamble that 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. OSHA added that testing in such situations would deter reporting without contributing to the employer’s understanding of why the injury occurred.
OSHA’s commentary notes in the final rule 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.”
OSHA also explained that an employer need not specifically suspect drug use before testing, although it adds that there should be a “reasonable possibility” that drug use was a contributing factor to the reported injury or illness. OSHA maintains that employers 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.
Employers who require mandatory drug testing following an accident should be prepared to defend their one-size-fits-all policies.
There are two classes of employers that are partially exempt from routinely keeping injury and illness records. First, employers with ten or fewer employees at all times during the previous calendar year are exempt from routinely keeping OSHA injury and illness records. OSHA's revised recordkeeping regulation maintains this exemption.
Second, establishments in certain low-hazard industries are also partially exempt from routinely keeping OSHA injury and illness records, unless asked in writing to do so by OSHA. All employers, including those partially exempted due to company size or industry classification, must report any workplace incident that results in a fatality, in-patient hospitalization, amputation, or loss of an eye.
