The Sophisticated Employer Blog

In case you missed it, the Department of Labor (DOL) recently revised the Occupational Safety and Health Act’s regulations to focus on encouraging employee involvement and to require electronic reporting by employers.

While not expressly part of the new regulations, the DOL’s comments that mandatory drug testing following all workplace injuries should not be part of an employer’s workplace safety policy are also particularly noteworthy.

Electronic Reporting

New electronic reporting requirements are based on the size of the employer. If an employer had 250 or more employees at any time during the previous calendar year, it will be required to electronically submit by July 1, 2017 information from the three record keeping forms currently kept (OSHA Form 300A Summary of Work-Related Injuries and Illnesses, OSHA Form 300 Log of Work-Related Injuries and Illnesses, and OSHA Form 301 Injury and Illness Incident Report).

Most employers (those in the industries identified in the regulations) having 20 or more employees (but fewer than 250) at any time during the previous calendar year will be required to electronically submit, no later than July 1, 2017, information from OSHA Form 300A Summary of Work-Related Injuries and Illnesses and the other forms by July 1, 2018.

Beginning in 2019, all of the employers identified above must submit all of the required information by March 2 of the year after the calendar year covered by the form or forms (for example, by March 2, 2019, for the forms covering 2018).  And, incidentally, the head count includes part-time, seasonal and temporary workers and applies in states (like Michigan) that have a state plan.

Employee Involvement

Unless employees are engaged in the process, many work-related injuries or illnesses will go unreported. Thus, 29 CFR 1904.35 was revised to more fully involve employees in the record keeping system in several ways, including:

• providing access to injury and illness records for employees and their representatives;
• establishing a procedure for reporting workplace injuries and illnesses;
• informing employees how to report work-related injuries or illnesses; and
• informing employees that they have the right to report work-related injuries and illnesses and that employers are prohibited from discharging or in any manner discriminating against employees for making a report.

Significantly, the procedure for employees to report work-related injuries and illnesses promptly and accurately must be a “reasonable” procedure. “A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” 29 CFR 1904.35(b)(1(i).

Commentary to the new regulations discusses disciplinary policies, post-accident drug testing policies and employee incentive programs, as well as their potential impact on the willingness of employees to report.

For example, safety programs that provided incentives for perfect safety records have been found to actually motivate employees to not report injuries and illnesses more than they encourage safe workplace practices (i.e., a $1,500 bonus for “zero” recordable injuries will dissuade an employee from reporting, not only because he will be denied the payment, but coworkers will be angered).

Other comments identify cases in which employers suspended, reassigned or even terminated employees for being injured or implemented progressive disciplinary policies involving increasingly serious sanctions for additional reports. Employer policies that make employees who report injuries ineligible for promotions or automatically give poor performance evaluations were also highlighted as dissuading reports.

Post-Injury Mandatory Drug Testing

The most interesting comments concerned policies mandating automatic post-injury drug testing as a form of adverse action that can discourage reporting.  

While recognizing that drug testing of employees may be a reasonable workplace policy in some situations, it may be perceived as an invasion of privacy. Therefore, requiring an employee to be drug tested whenever an employee has reported a workplace injury may inappropriately deter reporting. Of notable concern are methods of drug testing that do not identify current impairment but rather only indicate there has been some use in the recent past.

While commentary to the final rules does not have the force of law, it is an indicator of the DOL’s position.  And, the DOL has clearly voiced its concern that, if an employee knows that by reporting a workplace injury he will be subjected to a drug test (which he may fail), this may discourage reporting. Therefore, the DOL is taking the position that blanket post-injury drug testing policies deter proper reporting and are improper.

The final rule does not ban all employee drug testing but prohibits employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. The DOL advises employers to limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and to testing that can accurately identify current impairment caused by drug use.

The examples provided for unreasonable drug testing are testing an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. The DOL comments that “such a policy is likely only to deter reporting without contributing to the employer's understanding of why the injury occurred, or in any other way contributing to workplace safety.

The DOL comments that an employer need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing. In addition, drug testing that is designed in a way that may be perceived as punitive or embarrassing to the employee is likely to deter injury reporting.”

Finally, employers are specifically permitted to test for drugs if testing is required by a state or federal law or regulation (such as worker’s disability compensation laws), because the employer's motive would not be retaliatory.

So, what should an employer do? At a minimum, make sure your drug testing policy does not require testing following any and all workplace “injuries” but only following “accidents.” And, as always consult with an experienced employment attorney when you have questions concerning drug and alcohol testing.