On May 11, 2016, the Occupational Safety and Health Administration (OSHA) published its rule on employers electronic reporting of workplace injuries and illnesses. This new rule became effective on August 10, 2016, however OSHA delayed its enforcement until November 1, 2016. Pursuant to this new rule, many employers will be required to submit their summary of injuries and illnesses electronically to OSHA. This new rule requires employers to make sure they have a reasonable procedure for employees to report their work-related injuries and illnesses.
Employers are required to expressly inform employees they have a right to report work-related injuries and illnesses, and inform employees they will not be discriminated against or retaliating against for making such reports. Employers will be required to prove the employees received their reasonable procedure for reporting work-related injuries and illnesses policies to employees, however formal training of this policy and procedure will not be required.
The new rule does not prohibit drug testing of employees, however it prohibits employers from using drug testing, or the threat of drug testing as a form of retaliation against employees who report work-related injuries and illnesses. For example, if an employer conducts a drug test to comply with the requirements of a state or federal law or regulation, the employer's motive would not be retaliatory and this new rule would not prohibit such testing (i.e. Worker's Compensation requiring a drug test of the employee). On the other hand, an employer's motive would likely be found to be retaliatory if the employer subjects the employee to a drug test after the employee reports an injury due to a bee sting in the workplace. OSHA's May 12, 2016 commentary, with regard to drug testing notes that "although drug testing of employees may be a reasonable workplace policy in some situations, it 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."
Pursuant to the new rule, employers should get their blanket post-accident testing policies reviewed to ensure they are in compliance with the new OSHA regulation. Employers who do not comply with these new rules face serious penalties for each violation. For any questions regarding 29 CFR 1904 or any other employment or labor relations inquiries, please contact any of our attorneys at Sagaser, Watkins & Wieland PC at (559) 421-7000.