OSHA’s new post-accident reporting rule impacts drug testing

Requirements change for recording workplace injuries and illnesses; right to report free from retaliation and curtailment of drug testing

By Charitie Hartsig, Senior Attorney, Nussbaum Gillis & Dinner, P.C.

With the Occupational Safety and Health Act of 1970, Congress created the Occupational Safety and Health Administration.
Under OSHA law, employers are responsible for providing a safe and healthful workplace for their workers. OSHA covers most private-sector employers and workers in all 50 states, the District of Columbia, and other U.S. jurisdictions, either directly through federal OSHA or through an OSHA-approved state plan. Arizona is covered under an OSHA-approved state plan.

Every year, millions of workers suffer serious job-related injuries and illnesses. Among other mandates, OSHA requires that covered employers keep accurate records of work-related injuries and illnesses. For decades, OSHA has required employers to keep track of the workers’ injuries and illnesses by recording them in an OSHA log.

Under a final rule, codified at C.F.R. § 1904 (the “Final Rule”), OSHA will now require that some information on workplace injuries and illnesses (already required to be collected) be submitted for posting on OSHA’s website. The information will be made available in a searchable database that the agency states will be the “largest publicly available data set on work injuries and illnesses, enabling researchers to better study injury causation, identify new workplace safety hazards before they become widespread and evaluate the effectiveness of injury and illness prevention activities.”

According to OSHA, all personal information will be removed before reports are made public.

The Final Rule requirements apply to: (1) employers with 250 or more employees that are currently required to keep OSHA injury and illness records, and, (2) employers with 20-249 employees that are classified in certain industries with historically high rates of occupational injuries and illnesses.

The Final Rule will cover about 476,000 businesses and will cost approximately $15 million per year.

The reporting requirements of the Final Rule become effective Jan. 1. Requirements will be phased in over two years, with the first set of data due to OSHA by July 1, 2017.

The Final Rule also emphasizes workers’ rights to report injuries without fear of retaliation, and states that employers must have an appropriate reporting procedure that does not deter workers from reporting. Specifically, the Final Rule will require the following anti-retaliation actions: (1) employers must inform workers about their right to report work-related injuries and illnesses without the threat of retaliation; (2) employers must implement reasonable procedures for reporting injuries and illnesses that do not discourage workers from speaking up; and (3) employers must incorporate existing anti-retaliation rules into their practices.

Many employers conduct post-accident drug and alcohol testing policies to promote workplace safety, as part of accident investigation efforts, and in the hope of reducing workplace accidents and workers’ compensation claims. However, OSHA now takes the position that “blanket post-injury drug testing policies deter proper reporting” because employees fear being required to take a drug test.

Employers should be aware that the Final Rule does not wholesale ban drug testing of employees who are involved in an accident. However, the Final Rule does prohibit employers from using drug testing or the threat of drug testing as a form of adverse action against employees who report injuries or illnesses.

According to OSHA, “(t)o strike the appropriate balance,” 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.

OSHA’s guidance further notes that “(e)mployers 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 lists the following examples of injuries where drug testing is not appropriate: repetitive strain injury or injuries caused by a lack of machine guarding, or a machine or tool malfunction.

Employers should review their post-injury drug-testing policies to ensure that they do not contain blanket testing procedures that run counter to the Final Rule. The drug testing provisions of the Final Rule became effective November 1.

Charitie Hartsig is a Senior Attorney at the firm. Her focus is employment litigation and counseling, trust and estate litigation, commercial litigation and appellate advocacy. She may be reached at 480-609-0011 or chartsig@ngdlaw.com. This article is intended for informational purposes only and should not be construed as providing legal advice. If you have any questions regarding topics in this article, contact an attorney.