Courts recently rejected a request for preliminary injunction, or delay, of OSHA’s new “Improve Tracking of Workplace Injuries and Illnesses” rules, despite revisions that may apply. Specific provisions that the plaintiffs were hoping to delay include those related to post-injury drug testing and incentive programs.
So what does that mean for you?
It means the most recent implementation dates remain—even as OSHA continues to refine the mandate. The rule’s anti-retaliation provisions went into effect on December 1st, and the reporting requirements will take effect Jan. 1.
Here’s further clarification of the recordkeeping rule that you need to understand with regard to drug testing:
- OSHA states that “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 provided several scenarios where testing would “not be reasonable”:
- an employee suffering an allergic reaction to a bee sting
- an employee claiming a repetitive strain injury
- an employee harmed by lack of machine guarding or malfunction of a machine or tool
- The scope of the ruling is very narrow. It only impacts post-injury drug testing, not pre-employment or random drug testing.
- OSHA adds that employers “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.”
Ultimately, this means that your policies should not include automatic post-accident drug testing following an injury—you must be able to claim a reasonable suspicion or reason for testing. Also recommended is management training to help supervisors recognize signs of potential drug or alcohol use in employees. Another suggestion: remove any wording that requires “immediate” injury reporting, replacing it instead with “as soon as reasonably possible.” This allows an employee more time to appropriately assess an injury (the severity of which might not be immediately understood), and also protects employers against accusations of intimidation.
Here’s important clarification of the impact of the recordkeeping rule on incentive programs:
- The OSHA recordkeeping rule states, “It is a violation… for an employer to take adverse action against an employee for reporting a work-related injury or illness, whether or not such adverse action was part of an incentive program. Therefore, it is a violation for an employer to use an incentive program to take adverse action, including denying a benefit, because an employee reports a work-related injury or illness.”
This means you cannot disqualify any employee from receiving a monetary bonus or other reward if they report a work-related injury or illness. In addition, you will be less likely to face challenge if your workplace safety incentives are not tied to frequency of injury and illness, but instead to reward for positive efforts, such as participation in safety training.
- Although plaintiffs seeking the injunction claimed elimination of safety incentive programs could harm employee relations and goodwill, leading to an increase in workplace injuries, the court maintained that there is no need to eliminate safety programs. Instead, the ruling may require revision of a company’s safety program to remove any perceived threat of retaliation against those reporting an injury or illness.
As with all regulations and government rulings, interpretation is ever-evolving. Know that your team at MJ will continue to monitor any court challenges, revisions or new rulings, and we’ll share updates as appropriate. Of course, if you have any questions about this specific OSHA ruling, please don’t hesitate to contact Carol Scully at 317-805-7628 or carol.scully@mjinsurance.com.
