By Elliot J. Bloom, Summer Associate
The Davenport Evans Employment Law practice group brings you the following Q&A for employers regarding OSHA’s new Incident Reporting Rule:
What does the new OSHA regulation on Recording and Reporting Occupational Injuries and Illnesses (29 CFR 1904) require from certain employers?
- To electronically submit injury data to OSHA.
- To inform employees of their right to report work-related injuries free from retaliation.
- To ensure procedure for reporting work-related injuries must be reasonable and not deter or discourage employees from reporting.
- To prohibit retaliation against employees for reporting work-related injuries.
Will this electronic injury data be made public?
- Yes. After removing any personally identifiable information that could identify employees, OSHA will post the data online at osha.gov.
- Under Executive Order 13707, OSHA will publish the injury data to nudge employers to improve workplace safety.
How does this new rule change reporting requirements and anti-retaliation already in place?
- Employer will still be required to complete, retain, and certify injury and illness records. The new rule only requires certain employers to electronically submit some of this information to OSHA.
- The new rule gives OSHA authority to cite an employer for retaliation without a complaint from an employee.
How should employers inform employees of their rights?
- Post the OSHA “It’s The Law” worker rights poster located at http://www.osha.gov/Publications/poster.html.
- Establish a reporting procedure that does not discourage or deter an employee from reporting injuries.
How does this rule affect an employer’s post-incident drug testing program?
- This rule prohibits employers from using post-incident drug testing to retaliate against employees.
- Employers should not rely on blanket policies requiring tests following an injury, but tighten their policies to situations where it appears drugs or alcohol would be the sole or contributing cause. Abandoning post-accident testing in favor of reasonable suspicion testing is another option.
- Examples: not 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.
- Also, if the method of drug testing does not identify impairment at the time of the accident but only use at some time in the recent past, requiring a drug test may deter reporting at the time of the accident. Employers should utilize tests that measure only very recent drug or alcohol consumption.
- If an employer is complying with federal or state law (e.g. U.S. Department of Transportation regulations mandating post-accident drug testing), the employer would not be considered to have a motive that violates OSHA’s new rule.
What about employee incentive programs?
- The incentive program must not discourage or deter an employee from reporting an injury.
What dates should employers be aware of?
- August 10, 2016 – Inform employees of their right to report work related injuries free from retaliation; establish a procedure for reporting work-related injuries that is reasonable and does not deter or discourage employees from reporting.
- January 1, 2017 – Rule takes effect.
- July 1, 2017 – Establishments with 250 or more employees must submit information from their 2016 Form 300A. Establishments with 20-249 employees in certain high-risk industries must submit information from their 2016 Form 300A.
- July 1, 2018 – Establishments with 250 or more employees must submit information from all 2017 forms (300A, 300, and 301). Establishments with 20-249 employees in certain high-risk industries must submit their 2017 Form 300A.
- March 2, 2019 (every year thereafter) – Annual reporting deadline.
Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the state’s largest law firms. The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas. For more information about Davenport Evans, visit www.dehs.com.