A new rule issued by the Occupational Safety and Health Administration
(OSHA) modifies a requirement that employers with more than 10 employees keep
records of occupational injuries and illnesses. OSHA has concluded that such
workplace incidents are dramatically under-reported, and the stated focus of the
which went into effect August 10, 2016, is to encourage accurate reporting.
OSHA has also determined that some employers have
discriminated and retaliated against employees who report workplace accidents
and illnesses. To remedy this perceived issue, OSHA’s new regulation requires
ensure that the procedure for reporting
illnesses and injuries is reasonable such that it not deter employees from
refrain from retaliating against employees for
tell employees that they will not be
retaliated against if they report an injury or illness.
While the anti-retaliation requirement is not new, OSHA
has established a new mechanism to enforce it. Previously, OSHA could pursue
these issues only upon employee complaint; now, OSHA can pursue an employer for
discrimination or retaliation even if the employee does not complain. Upon
finding that an employer did discriminate or retaliate, OSHA may issue steep
penalties of up to $12,471 per violation or, for willful violations, up to
Post-Injury Drug Testing
One source of potential employer liability under this
rule is post-injury drug testing. In its comments to this regulation, OSHA
stated that a policy or practice of automatic testing after every accident is
per se retaliatory. It is OSHA’s position that blanket post-injury drug-testing
policies deter proper reporting by employees and can be a form of adverse action
against employees, and that drug testing that is designed in a way that may be
perceived as punitive or embarrassing to the employee is likely to deter injury
OSHA does not require that employers specifically
suspect drug use before testing, but there should be a reasonable possibility
that drug or alcohol use by the reporting employee was a contributing factor to
the reported injury or illness, if the employer will be testing.
Review your drug testing policy and ensure that
it indicates that the employer “may” (not “must”) test post-accident.
Notify your employees that they may report
injuries without retaliation.
When a workplace accident occurs, before
testing, determine whether there is a reasonable basis to believe that
impairment could have contributed to the incident.
Review your accident reporting requirements; if
they are overly burdensome, revise them.
To avoid the appearance of retaliation, be very
cautious in disciplining employees for late reporting of an accident.