OSHA Issues Final Rule on Recording and Reporting Occupational Injuries and Illness

The Occupational Safety and Health Administration has issued a final rule on injury data collection. Under the new rule, all establishments with 250 or more employees in industries covered by the record-keeping regulation must electronically submit to OSHA injury and illness information from OSHA Forms 300, 300A, and 301.

Establishments with 20-249 employees in certain high-hazard industries, including construction, must electronically submit information from OSHA Form 300A only.

Employers are required to inform workers of their right to report work-related injuries and illnesses without fear of retaliation; implement procedures for reporting injuries and illnesses that are reasonable and do not deter workers from reporting; and incorporate the existing statutory prohibition on retaliating against workers for reporting injuries and illnesses.

Of particular concern for OSHA are blanket policies that mandate drug or alcohol testing, and sometimes both, after any accident or injury.  Although OSHA acknowledges that drug testing “may be a reasonable workplace policy in some situations,” it argues that such testing “is often perceived as an invasion of privacy, so if an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.”

As such, OSHA states that employers should adopt policies that limit post-incident drug 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.”

If an employee has not contributed in any way to an injury or illness, then there can be no “reasonable possibility” that drugs were involved.  In the absence of such a “reasonable possibility” of drug-related impairment or of a causal link between the employee’s action and the resulting injury or illness, OSHA would view the required testing as primarily intended to discourage the reporting of the injury or condition or as a form of punishment for being involved in the accident or in developing the condition.

However, the rule does not prohibit drug testing of employees.  It only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses.

If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, such as Worker’s Compensation Laws and Drug Free Workplace Programs, the employer's motive would not be retaliatory and this rule would not prohibit such testing.

There are generally three categories that constitute valid reasons for post-accident or post-injury drug testing:  Drug-Free Workplace Policies and State Workers’ Compensation Laws; Reasonable Suspicion of Drug Impairment; and “Reasonable Possibility” Situations.

Using data collected under the new rule, OSHA will create the largest publicly available data set on work injuries and illnesses.

The new requirements are scheduled to take effect August 10, 2016.  Employers will be required to submit their 2016 information to OSHA electronically by July 1, 2017.

Information from 2017 will be required to be submitted to OSHA by July 1, 2018.

Beginning in 2019, and every year thereafter, information will be required to be submitted to OSHA by March 2nd. On July 13th, OSHA announced that enforcement of the anti-retaliation provision of the new rule has been delayed until November 1, 2016.  The delay in enforcement is to allow OSHA compliance officers to conduct additional outreach and provide educational materials and guidance for employers. Due to on-going questions and the potential impact this new rule could have on employer’s drug testing programs, employers should be carefully reviewing their drug testing policies and procedures.

The National OSHA Office is currently in the process of writing an additional compliance directive to provide further direction on the new rule.

These requirements do not add to or change an employer’s obligation to complete and retain injury and illness records under the Recording and Reporting Occupational Injuries and Illnesses regulation.

The final rule is available in the Federal Register, or by clicking here.