(August 4, 2016) Earlier this year, OSHA announced final changes to its rules governing the reporting of workplace injuries. These final rules are effective August 10, though the new electronic reporting requirement does not begin to phase in until January 1, 2017.

The bulk of the new OSHA regulations deal with electronic reporting and new transparency initiatives with the agency. To learn more about the electronic reporting requirements that will be implemented in 2017, see our previous article here.

However, the agency has also placed a focus on the anti-retaliation protections set forth in Section 11(c) of the Occupational Safety and Health Act. The new regulations require employers to establish a “reasonable” reporting procedure and prohibit retaliation against employees for reporting. OSHA guidance discourages injury reporting policies that require “immediate” reporting based on the idea that some occupational illnesses and injuries take time to manifest, and workers may be discouraged from reporting those injuries if they believe they will be disciplined for not reporting the injury earlier.

The guidance on anti-retaliation measures also establishes OSHA’s position that “blanket” rules requiring post-injury drug tests discourage employees from reporting workplace injuries and illnesses, and may result in a form of retaliation. The agency instead suggests that post-injury testing be limited to incidents where there is a reasonable possibility that drug/alcohol use was a contributing factor to the incident, and/or only use tests that measure current impairment, as opposed to past use.

Notably, the new regulations point out that OSHA rules and policies do not supersede state workers compensation laws. If applicable state law requires blanket post-injury drug testing, such testing is permitted. Michigan does not.

In order to comply with the new rules, employers should analyze and update applicable handbook policies, with the following in mind:

  • Make sure post-injury drug testing policy language permits discretion and that post-injury drug testing is only conducted when there is a reasonable possibility that drug or alcohol use was a contributing factor in the incident;
  • Reconsider language that requires “immediate” reporting and evaluate how the policy is currently enforced, particularly focusing on how employees are disciplined under it; and
  • Review any incentive and reward programs, including bonuses, that are linked to a “no injury report” track record.

For more information on workplace injury reporting requirements, contact a member of Rhoades McKee’s Employment Team.

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