OSHA Additional Rule Guidance: Electronic Reporting of Injuries and Anti-Retaliation Provisions
OSHA released additional Guidance on its anti-retaliation provisions and more details on electronic reporting. Here’s a summary to help stay complaint.
On November 29, a federal judge in Texas denied a request from multiple business groups to continue blocking portions of OSHA’s new anti-retaliation provisions while their legal challenge of the rules is still active. This means that despite being pushed back twice since the originally planned August 11 effective date, OSHA’s new anti-retaliation provisions took effect December 1. Just in time, as the new rules are now enforceable, OSHA has finally released additional guidance on how to comply with the provisions.
While the deadlines and type of information to submit were already released with the original rule, OSHA has provided more details on how this information will be submitted. OSHA has now clarified there will be three options available to companies required to submit through the website:
1. Users can manually enter the data into the website.
2. Users can upload a CSV file (which can be created from Microsoft Excel) to process single or multiple establishments at the same time.
3. Users of automated recordkeeping systems can transmit data electronically via an application programming interface (API).
The secure website to submit the required information to OSHA is scheduled to go live in February 2017 (well before the July 2017 submission deadline).
The primary concern OSHA has with discipline is in some situations, it’s being used as a way to deter employees from reporting injuries. In the new release, OSHA focused on two primary principles:
1. Discipline programs must be administered consistently and for violation of specific safety rules.
a. When examining whether or not discipline is being used as a method of retaliation, consistency and specificity will be the keys. OSHA believes using discipline for this purpose is likely when discipline is issued for vague rules such as “be more aware” or “work more carefully”. If discipline was issued to an employee who was injured for violating a safety rule, companies should document a specific rule in place that was violated. For example: not bypassing machine guards or not wearing the required PPE. There should be evidence of monitoring for violations or disciplining other employees for violating the same rule, even if they weren’t injured as a result.
2. Discipline for late reporting of injuries should only be used if the employee didn’t report the injury “as soon as practicable”.
a. Two scenarios were provided to clarify this issue. In both scenarios, an employee twisted their ankle at work, but doesn’t feel any pain or see any swelling until the next day.
- i. In scenario one, the employee reports the injury to their employer the next morning when they see the swelling. Discipline in this case wouldn’t be allowed as it’s not reasonable to expect an employee to report an injury they didn’t know had occurred or had no symptoms.
- ii. In scenario two, although symptoms appeared the next morning, the employee waited another several weeks to report the injury. In this case discipline for late reporting would be valid and compliant as the employee didn’t report it as soon as they reasonably could have.
b. OSHA also mentioned in the guidance that it’s not a violation to have a written policy in place stating employees have to report an injury as soon as practicable after realizing a reportable injury has occurred.
OSHA’s stance on incentive programs was made pretty clear in the initial rule release. Rewarding employees for no injuries is a deterrent for injury reporting. To further explain this stance, OSHA provided a few examples. A quick summary of their comments from these examples clarifies that:
1. Incentive programs that provide a reward for no lost time injuries are considered to be in violation of the new rules.
2. In cases where an incentive program is tied to violations of safety rules, compliance will be determined by whether or not the rules are monitored and enforced on a regular basis. If an injury occurs where a safety rule was violated and an incentive is not provided for that reason, OSHA will want to see that the safety rule in question is always enforced, not just when an injury happens.
3. For incentive programs that reward employees for 100% completion of safety training, even if an employee misses training due to being out for a work-related injury, the company is still in compliance with the rule for not providing the reward to the injured employee. In this case, the incentive is not being provided to the injured employee because the 100% goal was not met rather than not being provided purely because the employee is injured.
In order to help companies understand which kinds of incentive programs would be considered compliant under the new rules, OSHA also released a few more examples of proactive incentive programs:
- Incentives for participation in safety program activities and evaluations.
- Incentives for completion of safety training.
- Incentives for reporting hazards and close calls/near misses.
- Incentives for completion of safety walkthroughs and identification of hazards during walkthroughs.
- Incentives for following planned preventative maintenance schedules.
- Incentives for compliance with legitimate workplace safety rules.
Post-Accident Drug Testing:
By far the most controversial and questioned piece of the new provisions is the rule on post-accident drug testing. As previously stated, this new rule doesn’t ban post-accident drug testing altogether, just in situations where there’s no reasonable possibility that drug use could have contributed to the injury. The key takeaways from OSHA’s additional guidance on this topic are:
1. These new rules have no effect on current policies in place for random or pre-employment drug testing.
2. Employers don’t have to specifically suspect drug use before the accident occurs or before testing is done, but there should be a reasonable possibility that drugs were a contributing factor.
3. OSHA is planning to consider if the drug test administered is capable of determining impairment at the time of injury. However, since current drug tests are generally not able to pinpoint impairment levels at this time, OSHA will only consider this a factor for tests that measure alcohol use.
4. Drug testing that’s in line with applicable federal law or state workers’ compensation law is not affected by the new provisions. Examples include:
- a) Department of Transportation required post-accident drug testing.
- b) State Drug-Free Workplace programs that require post-accident drug testing to allow employers to get reductions in their workers’ compensation premiums.
- c) Private insurance carrier premium discount programs (that are identical to the applicable state workers’ compensation law) require post-accident drug testing to allow employers to get reductions in their workers’ compensation premiums.
- I. It should be noted not all states have programs like this in place so employers should check their applicable state laws to see if this could apply to them. As an example, Illinois doesn’t have a law which would meet this requirement.
5. Drug testing that’s required solely by collective bargaining agreements doesn’t supersede the new provisions. If an employer drug tests an injured employee for an injury where it’s is not reasonable drugs could have been a factor only because it’s required per the collective bargaining agreement, this would be a violation and a citation is possible.
For OSHA, the main factors in determining compliance will be:
1. There was a reasonable possibility drugs could have been a contributing factor and could provide insight as to why the injury occurred.
2. Other employees involved in the same incident or behavior, whether injured or not, were also tested (not just the injured employee).
- a. For example: if an employee is struck by a forklift and injured, only testing that employee would be a violation. The operator could have just as likely been impaired, so they should also be tested.
3. The employer has “heightened interest in determining drug use due to the hazardousness of the work being performed”.
- a. While this wording can be confusing, the concept is similar to that of “safety-sensitive” positions. Essentially, the position or work is particularly dangerous if being performed by someone under the influence. Examples of these types of positions would be equipment operators (forklifts, cranes, etc.) or drivers.
In order to comply with these new requirements, companies that plan to perform post-accident drug testing (and are not exempt by state or federal law) should take the following steps:
1. Modify written programs to clarify post-accident drug testing will be required “if it’s reasonably possible drug use was a contributing factor”.
2. Train managers and supervisors who will be responsible for determining if a drug test is required on reasonable suspicion. Include sample scenarios (in the training as well as the written program) of situations where drug testing would or wouldn’t be required. For example: carpel tunnel syndrome would be an example of an injury where drug testing would always be a violation as drugs could not possibly be a contributing factor.
3. Add documentation to incident files where drug testing was performed providing specific details as to why it was done. Most commonly, this is done through a Reasonable Cause of Suspicion Form.
Lauren Gizzi is a Safety Supervisor at Assurance with more than ten years of industry experience. An expert in OSHA recordkeeping, safety programming and risk management, she works closely with her clients to establish effective safety programs that achieve measurable results. Lauren attended Roosevelt University and received the following designations: Associate in Risk Management (ARM), Associate in Claims (AIC) and Construction Risk and Insurance Specialist (CRIS), Associate in General Insurance (AINS) and Certified Staffing Professional (CSP).