On May 11, 2016, the Occupational Safety and Health Administration (OSHA) released a new rule and a list of new requirements in regards to the way that companies record workplace illnesses and injuries that were to become effective August 10, 2016. However, currently OSHA has delayed their enforcement until December 1st, 2016. The reasoning behind this new rule is to ”modernize injury data collection to better inform workers, employers, the public and OSHA about workplace hazards.” This rule has been noted by OSHA to urge employers to better their efforts to prevent workplace illness and injury. This rule includes announcements regarding routine practices, such as drug testing policies that may require changes.
Before this rule, employers typically recorded, reported, and tracked workplace illnesses and injuries internally. Now, with the new rule in effect, many employers will be mandated to submit the records they have kept internally for so long to OSHA every year. Under the new rule, employers in “high-hazard” industries will send OSHA injuries and illnesses data that the employers are already required to collect for posting on the agency’s website.” OSHA will then publish this data online accessible by anyone with an internet connection. Anyone, including competitors, prospective employees, shareholders, union organizers and disgruntled former employees, will now be able to presumably search, filter and copy information for their own use. OSHA will be phasing this in over the next two years, as employers with 250 or more employees must submit the required 300A Annual Summary by July 1, 2017, and employers with 20 to 249 employees in certain “high-hazard” industries must submit their 2016 and 2017 300A Summaries by July 1, 2017 and 2018, respectively. Some of the industries in the 20-249 employee category include: construction, utilities, manufacturing, courier and express delivery services, warehousing and storage, waste treatment and disposal, nursing care facilities, and museums, historical sites, and similar institutions, to name a few. (For additional “high-hazard” industries refer to OSHA’s website at OSHA.com)
While the electronic submission requirements make up a majority of the new rule, OSHA has commented on the new rule and has shed light on discrimination when reporting a claim of workplace injuries or illnesses. With that in mind, employers must focus on their “reasonable procedure” for reporting work-related injuries and ensure that their procedure does not discourage employees from reporting workplace injuries or illnesses essentially leading to inaccurate records of hazards in the workplace. Additionally, employers must inform employees that they have the right to report injuries and illnesses, in addition to advising them that their employer is “prohibited from discharging or in any manner discriminating against [them] for reporting work-related injuries or illnesses.
To go along with this, OSHA noted in their comments on the new ruling, “blanket post-injury drug testing policies deter proper reporting.” OSHA is encouraging employers to utilize post-injury drug testing only where “there is reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness and only where the drug test may accurately identify impairment caused by drug use.” Although employers have the ultimate decision to mandate post-accident drug testing, OSHA still reserves the right to conclude that the testing unlawfully deterred the employee from correctly and completely reporting the injury or illness.
OSHA has once again discouraged employers from offering employer safety incentive and disincentive policies. OSHA states that employers should avoid using an incentive program to “take adverse action, including denying a benefit, because an employee reports a work-related injury or illness, such as disqualifying the employee for a monetary bonus or any other action that would discourage or deter a reasonable employee from reporting the work-related injury or illness.” On the other hand, OSHA has noted that if “an incentive program makes a reward contingent upon, for example, whether employees correctly follow legitimate safety rules rather than whether they reported any injuries or illnesses, the program would not violate this provision.”
So, employers are probably asking themselves what should we do next to ensure that we are in compliance with these new rules or how to get in compliance. Here are a few tips:
- Review the company’s drug and alcohol testing policy to make sure that the policy does not potentially test employees following a workplace injury or illness where drugs or alcohol are unlikely to have caused the incident.
- Review any safety incentives and disincentive policies to ensure that the policies do not discourage or deter an employee from reporting an injury or illness. If so, consider discontinuing such policies.
- Initiate the change from paper recordkeeping to an electronic system that is compatible with OSHA’s reporting submission portal. This may involve retraining an individual or individuals who are responsible for the reporting to better understand the new ruling and it’s respective reporting requirements.
- Lastly, understand that OSHA, for the first time in 26 years, will be adjusting its civil penalties to account for inflation and has the authority to do so on an annual basis based on the Consumer Price Index. Previously, the maximum penalty for “Serious Other-Than-Serious Posting Requirements” was $7,000 per violation. This has since been raised to $12,471 per violation. The previous “Failure to Abate” maximum penalty was $7,000 per day beyond the abatement date and has also been raised to $12,471 per day beyond the abatement date. Lastly, the maximum penalty for “Willful or Repeated” citations were previously $70,000 per violation, and have since been raised to $124,709 per violation.
For additional information on this topic, please contact us at www.NewFocusHR.com.
Written by: Patrick McKenna, SHRM-CP