The first part of the new OSHA "illness and injury" reporting regulations is straightforward enough. It states that those who are already required to file these reports must now submit the forms electronically, via a secure OSHA website. Companies not currently required to file injury and illness reports aren't affected by the new rules.
Electronic reporting, says OSHA, will allow the agency to "use its enforcement and compliance assistance resources more efficiently."
Electronic Filing Timetable
The requirement to report electronically varies by the size of the company, which is calculated according to its peak employment during the prior calendar year. Be aware that a single employer can have more than one establishment, defined by OSHA as "a single physical location where business is conducted or where services or industrial operations are performed."
Companies with at least 250 employees must electronically submit injury and illness information from OSHA forms 300, 300A and 301. These companies must begin submitting information from form 300A electronically as of July 1, and information from all forms by July 2018.
Smaller companies (those with at least 20 employees) are also subject to the same timetable if they operate in one of 66 industries deemed by OSHA to be "high risk." These industries range from agriculture to waste treatment, from psychiatric and substance abuse hospitals to museums. Even if you don't think of your industry as "high risk," it would be prudent to reference OSHA's classification system.
Companies with fewer than 20 employees that are already subject to OSHA reporting in non-high-risk industries can continue reporting on paper forms.
The thornier provision of the new OSHA regulations is intended to improve on certain existing rules which were put in place to prevent employer retaliation after an employee reports a work-related illness or injury. Before the new regulations took effect, OSHA was limited in its ability to punish an employer that it believed had discharged or discriminated against an employee based on a complaint. First, the employee needed to file a complaint with OSHA within a month of the alleged retaliation.
Under the new rule, OSHA will be able to go after employers it believes has retaliated, even without an employee complaint, and even if the employer "has a program that deters or discourages reporting through the threat of retaliation." This change, OSHA believes, gives the agency "an important new tool in encouraging employers to maintain accurate and complete injury records."
What Will OSHA Look for?
A key area that OSHA will review in looking for retaliation is whether a company has a post-accident drug testing policy. The mere existence of a policy isn't problematic but might be if an employer uses it to threaten employees who file work-related accident or injury reports. Here's OSHA's statement: "Drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use."
OSHA also states 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 reporting."
Before OSHA can claim that an employer's post-accident drug testing policy is evidence of the intent to discourage accident reporting, the agency has to make a reasonable case. How? An example would be when an accident involves more than one employee, but only the employee who reported the accident was subjected to a drug test.
Suppose, on the other hand, OSHA concludes that the employer's drug-testing policy serves "as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances," as stated in agency guidelines. In that case, it would likely not be troubled by such a policy.
Employers may also protect themselves by establishing formal and logical criteria that may trigger drug testing. For example, when an accident results in a minimum level of property damage or severity of injury, a drug test will be the norm.
In addition, for employers that have a mandatory post-accident drug testing requirement, periodic checking to see if the policy has positively resulted in curbing future accidents may be helpful. In cases where no positive impact is discernible, employers might consider eliminating the policy.
Finally, be sure you've complied with the longstanding OSHA requirement that you post OSHA's Job Safety and Health "It's the Law" poster at your worksite. This is a list of worker rights that includes employees' ability to "raise a safety or health concern with your employer or OSHA, or report a work-related injury or illness, without being retaliated against."
Beat OSHA to the Punch
With OSHA heating up its efforts to find and eliminate retaliation, employers would be wise to proactively review their policies when an injury or illness report is filed. Even where there's no intent to retaliate, if the appearance of "payback" is there, you could be in hot water. Remember, OSHA no longer requires an employee complaint if it wants to raise the hood on your processes and take a look. Beat them to the punch by ensuring your company gets and stays in compliance.
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