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OSHA recently implemented its new "reporting and anti-retaliation rule", which went into effect January 1, 2017. Under the new rule, certain employers must now submit injury and illness information electronically. Most employers were already required to keep records of work related illnesses and injuries and to report fatalities and other certain serious injuries. However, under the new rule, companies that employ 250 or more employees must electronically submit OSHA Form 300 (Log of Work Related Injuries and Illnesses); OSHA Form 301 (Injury and Illness Incident Report); and OSHA Form 300A (Summary of Work Related Injuries and Illnesses) on a quarterly basis. Companies in the construction, manufacturing, utilities, and agriculture industries, which have historically high rates of occupational injuries and illnesses, must submit OSHA Form 300A annually when they employ between 20 and 249 employees. Additionally, OSHA may provide written notification to any smaller employers requiring them to submit information on a routine basis electronically.
The anti-retaliation rule allows OSHA to cite employers for taking adverse action against employees for reporting a work related injury or illness, even if the employee does not file a retaliation complaint. It also allows OSHA to cite employers who have systems in place that have traditionally been used to create safer workplaces, but OSHA now says discourage injury reporting. In the rule, OSHA specifically address concerns regarding safety incentive programs and post accident drug and alcohol testing.
OSHA states that employers may perform post-accident drug and alcohol testing only where (1) there is a reasonable possibility that the employee’s drug use contributed to the incident and (2) the drug test can accurately identify that the impairment was caused by the drug use. On the other hand, OSHA states that it is unreasonable to drug test an employee when it is clear that drug or alcohol use would not have made it more likely that the injury would occur (such as insect bites and repetitive strains occurring over a long period of time). OSHA’s reasoning is that allowing employers to drug test after every accident/injury discourages employees from reporting injuries. Safety incentive programs such as cash bonuses for departments or employees that remain accident free are also prohibited. OSHA says that employees who are injured may be reluctant to report it because they are afraid their co-workers will be hostile toward them for not getting the incentive.
OSHA can fine employers up to $12,471.00 for a single serious violation and up to $124,709.00 for willful or repeated violations. Therefore, all employers need to review their injury-illness reporting requirements, post accident drug and alcohol testing protocols and safety incentive programs.
My Two Cents
The new reporting requirements should not be a big deal for most employers, since the reporting does not really change - just the method of reporting. On the other hand, the "anti-retaliation" rule presents new issues and problems. While across-the-board drug testing may discourage drug users from reporting injuries, it also discourages drug use.
Did You Know?
If you receive a Notice of Citation from OSHA, you have a right to contest it and have the matter tried before a neutral judge. You also have the right to obtain information that OSHA obtained in its investigation, and to conduct your own investigation into the merits of the alleged violation(s).
About the Author
This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at firstname.lastname@example.org or (205) 332-3414.