The Occupational Safety and Health Administration (OSHA) recently published new rules on discrimination, injury and illness reporting that will impact many businesses across the country. Big “I” agencies should review the rules and share them with their business clients.
The new rules prohibit employers from discriminating or retaliating against employees for reporting a work-related injury or illness. An employer’s procedure for reporting work-related injuries and illnesses must be reasonable and should not deter or discourage employees from reporting.
OSHA interprets the new rules broadly and, in doing so, bans mandatory post-incident drug testing. However, the new ban on blanket drug testing policies will not apply in the event that state workers compensation laws or relevant federal law require an employer to maintain such drug testing policies.
OSHA believes testing should be limited to situations where the facts indicate that drug use may have contributed to the incident. For example, an employee who reports a repetitive strain injury should not be drug tested. The new rules limit the use of incentive programs and require employers to use drug tests that can accurately identify impairment caused by drug use, as opposed to past drug use. The new rules also state that policies must allow for reporting within a reasonable time, rather than only immediately following the occurrence of an injury.
Additionally, the rules require certain employers to file workplace injury and illness information online. They do not impose any new data reporting requirements on employers that are not currently required to report data, but simply require them to file data electronically. OSHA will then post certain information from the reports on its website for public consumption.
The reporting requirements will be phased in over the next two years. The new anti-discrimination and anti-retaliation rules were originally scheduled to take effect Aug. 10, 2016, but have been delayed until Nov. 1, 2016. Additionally, a recently filed lawsuit challenges the rule and could further delay implementation if it succeeds.
Despite the lawsuit, employers should review their policies and, if necessary, consider taking action to ensure compliance with the new regulations. Contact DDM if you have any questions about compliance or protection.