In a previous issue, we discussed a new OSHA reporting regulation that was initially scheduled to take effect on August 10, 2016, but was pushed back to November 1, 2016, and then delayed again until December 1, 2016 as a result of pending litigation by a number of trade associations, which sought to enjoin the regulation as it related to post-accident drug testing programs. On November 28, 2016, the Texas court refused to issue the injunction and the new rule became effective on December 1, 2016. Texo ABC/AGC Inc. v. Perez, Case No. 3:16-cv-01998 (N.D. Tex. 2016).

As a result of the court’s action, the new regulation is now in effect. Employers must therefore begin submitting their annual illness and injury data electronically, depending on their size, in accordance with a two year phase-in schedule. Under the new regulation, employers must also establish a “reasonable procedure” for employees to promptly and accurately report injuries, but must do so in a way that does not deter or discourage them from accurately reporting an injury. The rule does not prescribe specific procedures, but OSHA suggests that employers review their reporting requirements for elements that might deter employees from reporting injuries (e.g., requiring the immediate reporting of injuries that may develop over time or initially did not appear serious.)

Under the anti-retaliation provisions of the new rule, employers must inform employees of their right to report injuries free from retaliation, which can be satisfied by simply posting the current OSHA Poster. Employers are also prohibited from taking adverse action against employees for reporting work-related illnesses and injuries, which would include any actions that would discourage a reasonable employee from reporting an injury, such as discharging, demoting or denying bonuses to employees who report injuries; assigning “points” that lead to negative consequences; and, requiring employees who report injuries to take a drug test without a legitimate business reason (i.e., suspicion that drug/alcohol use may have contributed to the injury).

It should be noted that the rule does not prohibit employers from disciplining employees who suffer an injury, where the injury is the result of safety violation, for example. The rule only prohibits employers from retaliating against employees for having reported an injury. Likewise, the rule does not prohibit all post-accident drug testing, only blanket testing of any employee who reports an injury, regardless of cause. Post-accident testing should therefore be limited to those situations in which there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness.

Lastly, the new regulation prohibits employers from using safety incentive programs in a way that penalizes employees for reporting injuries, which would include denying a benefit to an employee who reports an injury. Under the new regulations, bonus programs that reward employees for “X days without a reported injury” would be prohibited, because they discourage and penalize employees who report injuries. According to OSHA, incentive programs that encourage safe work practices and promote worker participation safety-related activities are permissible, such as rewarding employees for utilizing safety equipment.

Given the slew of new regulations issued in the waning months of the Obama administration (and this is one of them), there is currently discussion of legislation that would wipe them off the books through congressional action in the early days of a Trump presidency. That remains to be seen, however. For now, compliance is required.

If you would like more information, or have questions about the new regulation and/or how it may affect your post-accident drug testing or safety incentive programs, contact Wessels Sherman Attorney Alan E. Seneczko at (262) 560-9696, or alseneczko@wesselssherman.com.