by Renee Mielnicki, Esquire
Most of our employers are familiar with the Occupational Safety and Health Administration (OSHA) and its Recordkeeping and Reporting requirements. As a refresher, OSHA enforces the OSH Act, a federal law pertaining to health and safety in the workplace. An employer covered by the OSH Act must comply with its recordkeeping requirements unless the employer fits within one of the following partial exemptions: (1) the employer had ten or fewer employees at all times during the previous calendar year; (2) the employer operates in one of the specific low-hazard industries identified by OSHA. (For OSHA’s list of partially exempt industries, click here.)
The exemptions above are referred to as partial exemptions because employers exempt from the recordkeeping requirements due to company size or industry are not exempt from OSHA’s reporting obligations. All employers, regardless of size or industry, must report each work-related: (1) fatality; (2) in-patient hospitalization of one or more employees; (3) amputation; or (4) loss of an eye.
OSHA recently amended its recordkeeping and reporting rule. Effective August 10, 2016, the new OSHA rule will impact employers post-accident drug testing policies as well as safety incentive programs. Though the impact of the new rule is not fully explained within the rule itself, OSHA has published comments within the May 12, 2016 Federal Register.
Regarding post-accident drug testing, OSHA has taken the position that blanket post-accident drug policies violate the recordkeeping rule because OSHA believes that such policies deter employees from reporting injuries. For example, a rule that would require all employees to be tested after every accident, regardless of the cause or employee’s role in the accident, will now be prohibited. Instead, OSHA instructs 
employers to adopt post-accident drug testing policies that “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 further states that employers do not need to specifically suspect drug use before testing, but that 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 the employer to require drug testing.”
The comments do give some clarification on what will now be prohibited under the new rule. Examples of situations where testing should not occur include requiring post-incident drug testing after an employee reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. According to OSHA, such a policy is likely to only deter reporting without contributing to the employer’s understanding of why the injury occurred or in any other way contributing to workplace safety. On the bright side, OSHA does make it clear that the new rule will not affect drug policies that are governed by other federal laws, such as the Department of Transportation (DOT) regulations or state workers’ compensation programs.
Regarding safety incentive programs, OSHA touches upon these in the comments to the final rule. Incentive programs are often used by employers as part of their safety 
program. For instance, some employers have programs that provide rewards or money for periods in which no injuries are reported. In some instances, if these programs are not structured carefully, they can violate the new recordkeeping rule. OSHA provides the following guidance in the comments when implementing such a program:
“It is a violation for an employer to use 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. In contrast, 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. OSHA encourages incentive programs that promote worker participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents, or “near misses.” OSHA’s Voluntary Protection Program (VPP) guidance materials refer to a number of positive incentives, including providing t-shirts to workers serving on safety and health committees; offering modest rewards for suggesting ways to strengthen safety and health; or throwing a recognition party at the successful completion of company-wide safety and health training.”
Regarding employee notification requirements, the new rule requires employers to inform employees not only of their right to report, but also of the procedure used to report a work-related injury or illness. Employers are also prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses.
Regarding the recordkeeping process employers must use, OSHA’s new rule brings new requirements. OSHA’s current regulations, found at 29 CFR Part 1904, require certain employers with more than 10 employees to keep records of work-related injuries and illnesses at their establishments. Employers covered by the rule must prepare an 
injury and illness report for each case (Form 301), compile a log of these cases (Form 300) and complete and post in the workplace an annual summary of all work-related injuries and illnesses (Form 300A). OSHA currently obtains this data only through onsite inspections or inclusion in a survey. In the comments, OSHA explains that this method of recordkeeping was limited and did not serve its overall purpose of enforcing the OSH Act in the workplace. For that reason, the new rule will now require certain covered employers to submit these same records to OSHA electronically, rather than simply keeping them or posting them at their establishment. Specifically, effective January 1, 2017, establishments with 250 or more employees must submit forms 300, 300A and 301 electronically to OSHA on an annual basis. In addition, establishments with 20 or more employees, but fewer than 250 employees, must electronically submit form 300A to OSHA annually. Lastly, upon notification, employers must electronically submit certain information from these required recordkeeping forms to OSHA. These new electronic submission requirements do not add or change a covered employer’s general recordkeeping obligations. The only change is that, in some instances, employers must now submit the records electronically.
Now what? OSHA’s comments on post-accident drug testing and safety incentive programs leave us with a lot of questions; however a few things are clear. Employers are not in any way prohibited from conducting post-accident drug testing. They ar
e also not required to have reasonable suspicion after an accident to drug test. However, any post-accident drug testing policy or program that automatically triggers a test after any accident, regardless of circumstances, should immediately be revised to comply with the OSHA guidance referenced above (testing should be done where drug use is likely to have contributed to the incident and for which the drug test can accurately identify impairment caused by drug use). We are hoping that OSHA will publish some additional guidance to better explain what is meant by the new standard since it is not entirely clear.
It’s also clear from the comments that OSHA does not prohibit safety incentive programs either. But, just like post-accident drug testing policies, these programs have to be drafted in a way that does not deter proper reporting of injuries.
If you need help making your drug and alcohol policy comply with OSHA’s new rule, please contact the HR helpline at hrhelpline@eastcoastrm.com or by calling 855-873-0374.
For assistance with your safety incentive programs and development of your reporting procedures, please contact one of our safety experts by calling 877-864-3311.
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