Employers need requirements for immediate reporting of work-related injuries and post-accident drug-testing policies

On May 12, 2016, the Occupational Safety and Health Administration of the United States Department of Labor published in the Federal Register a final rule with the announced purpose to “Improve Tracking of Workplace Injuries and Illnesses.”  Part of that rule will require employers to electronically file OSHA injury and illness data.  We previously discussed that aspect of the rule here.

In addition to requiring employers to electronically report certain workplace injuries, the new rule included provisions seeking to assure that the information on workplace injuries reaches the employer.  The final rules thus amend amended the no-retaliation provisions of 29 CFR §§ 1904.35 and 1904.36. 

When announced, the provisions on electronic reporting were set to be effective January 1, 2017.  However, the effective date for the changes to the report injuries / no-retaliation rules was set for August 10, 2016.  On July 13, 2016, a Memorandum was sent to OSHA Regional Administrators instructing that the agency delay enforcement of the no-retaliation aspects of the new rules.  (That is, the rules are “effective” but they will not be enforced.)  The July memorandum explained:

In order to provide the opportunity to conduct additional outreach to the regulated community, we have decided to delay enforcement of these provisions until November 1, 2016.  We are currently developing educational materials for employers and enforcement guidance for your staff that will be made available shortly. Please instruct your staff to provide these materials to employers that are subject to the requirements under § 1904.35 and to provide guidance on what steps the employers can take to ensure that they are in compliance with the new provisions when enforcement begins on November 1, 2016.

The new 29 CFR §1904.35 requires employers to:

• Establish a “reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately” and

• Inform each employee of the procedure for reporting work-related injuries and illnesses.

• Inform each employee not only that the employee has the right to report work-related injuries and illnesses, but that the employer is prohibited from discharging or in any manner discriminating against an employee who makes such a report.

The new rule amplifies the phrase “reasonable procedure” with the admonition, “A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury.”  Thus OSHA is warning employers that it is going to look at workplace practices or policies to see if there is something that might deter a “reasonable employee” from making such a report. 

In the preamble to the final rule, OSHA notes that commenters to the proposed rule had identified three distinct types of practices which might deter reporting of workplace injuries and illnesses.  While not mentioned in the rules, the agency discussed in the preamble:

• Employee incentive programs (think “no reported accident” programs with rewards),

• Disciplinary policies (rules that require immediate reporting of all workplace injuries and illnesses and disciplining employees if they fail to make such a report), and

• Post-accident drug testing policies. 

That last one really surprised me.  Almost a quarter of a century ago, Congress enacted the Omnibus Transportation Employee Testing Act of 1991, mandating that each “Transportation” agency (e.g., aviation, railroad, motor carrier, mass transportation) prescribe regulations to require covered employers to conduct -- among other types --  post-accident drug and alcohol testing.  In the statute, Congress specifically found that:

(4)    the use of alcohol and illegal drugs has been demonstrated to affect significantly the performance of individuals, and has been proven to have been a critical factor in transportation accidents;

(5)    testing of uniformed personnel of the Armed Forces has shown that the most effective deterrent to abuse of alcohol and use of illegal drugs is increased testing, including random testing;

(6)    adequate safeguards can be implemented to ensure that testing for abuse of alcohol or use of illegal drugs is performed in a manner which protects an individual's right of privacy, ensures that no individual is harassed by being treated differently from other individuals, and ensures that no individual's reputation or career development is unduly threatened or harmed; [Boldface emphasis added.]

DOT-mandated post-accident testing continues today under federal regulations which have the force and effect of law. 

OSHA proclaims that “employers have the responsibility to provide a safe workplace,” that employers have the responsibility to, “find and correct safety and health hazards,” and that “[e]mployees have the right to . . . [w]orking conditions that do not pose a risk of serious harm. Yet the federal agency charged with assuring safe and healthful working conditions is apparently by attempting to curtail post-workplace-accident drug and alcohol testing.  And doing so in contravention of the specific Congressional findings both of the link between the abuse of alcohol / illegal use of drugs and both workplace performance and workplace accidents, and of the efficacy of testing in deterring that conduct (and thus by my inference, fostering a safer working environment).

Who is going to be deterred from filing an illness or injury report knowing that in doing so he or she will be subject to a drug/alcohol test?  I acknowledge that I don’t presently have any “study” or “learned scholastic publication” to support my common sense theory that the only person who might be deterred is someone who is currently illegally using or abusing drugs or alcohol.

I will be most interested to see what educational materials and enforcement guidance will be forthcoming from the agency. 

In the meantime, Iowa, as was discussed in our earlier blog post, is an “OSHA state-plan” state. As such, Iowa employers will have some extra lead time before the federal mandates on what employees must be told about reporting workplace injuries are required to be in place.  Assuming that the State of Iowa wishes to maintain a separate, federally approved plan, it will need to put in place fairly quickly regulations which are no less stringent than those of the federal OSHA.

Regardless of whether post-accident drug/alcohol testing is conducted, all employers should be mindful of the need for a review of policies and procedures regarding the prompt reporting of workplace accidents.  Enforcement, while delayed from August 10, 2016, will begin on November 1, 2016 in states which do not have a separate state plan.  And shortly thereafter in those states, like Iowa, which have a federally approved state plan for occupational safety and health.  

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.