Think 180 days without an OSHA recordable injury is cause for celebration? Think again.

New OSHA rules are potential game-changers to the status quo on safety.  Those rules require notice must be provided to employees explaining their right to report any injury or illness without fear of retaliation for making the report.  That is easy enough but that is only the beginning.

The rules also contain a directive that employers “must not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.” 29 C.F.R §§ 1904.35(b)(iv).  Further, it requires that employers “establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.”

OSHA views this seemingly innocent obligation as its authority for sweeping reviews of employer policies. This portends far more sweeping intrusions into day-to-day shop management.  Let’s consider some specifics.

Do you have rules on immediate reporting of injuries? OSHA asserts that such “rules cannot penalize workers who do not realize immediately that their injuries are serious enough to report, or even that they are injured at all” and promises to carefully scrutinize any disciplinary action against an employee who has violated an employer’s rule about the “time or manner for reporting injuries or illnesses.”

Do you have injury rate-based incentives? OSHA asserts that those are now problematic. Incentive programs based on “injury free” time periods could be considered unreasonable if the policy would deter an employee from reporting a work-related injury. If workers are rewarded for achieving low rates of reported injuries, co-worker peer pressure may discourage reporting. OSHA (after nearly 50 years of silence) is now anti-incentives.

Do you have post-injury drug testing? OSHA cautions that blanket post-injury drug testing policies may deter proper injury reporting. Thus, it now commands an “appropriate balance” – which seems to be less than probable cause but not by too much:

drug testing policies 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 need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.

OSHA’s rules are being challenged in court: Texo ABC/AGC Inc. et al. v. Perez et al., Case No. 3:16-cv-01998, in the U.S. District Court for the Northern District of Texas.  The new rules were originally scheduled to begin on August 10, 2016 but implementation has again been delayed until December 1, 2016, pending additional briefing in the Texo case on a motion seeking to enjoin implementation of these rules.

Action Items to Implement:

• Establish a policy/procedure for employees to promptly and accurately report injuries and illness;
• Distribute the reporting procedure with a notice that employees have the right to report work-related injuries and illnesses and will not be retaliated against for exercising that right;
• Revise any “immediate” injury reporting policies and corresponding “failure to report” disciplinary procedures;
• Review (and potentially eliminate) employee incentive programs based on injury rates or “injury free” periods; and
• Revise any automatic post-injury drug testing policies.

PS:

1. Starting January 1, 2017, OSHA’s injury and illness data reports will need to be submitted electronically, unless an employer had ten or fewer employees during the previous calendar year or is categorized as a low-hazard industry.
2. Compliance with theses electronic reporting requirements will be phased in:

• Establishments with 250 or more employees must submit information from their 2016 Form 300A by July 1, 2017; all 2017 forms (300A, 300, and 301) by July 1, 2018; and all subsequent years on March 2.
• High-risk establishments with 20-249 employees are required to submit their 2016 Form 300A by July 1, 2017; their 2017 Form 300A by July 1, 2018; and all subsequent years by March 2.
• All other establishments with 249 or fewer employees are exempt.