16 Jan Electronic submission of injury and illness data becomes employers’ new reality

On May 12, 2016, the Occupational Safety and Health Administration (OSHA) published its final rule on electronic reporting of workplace injuries and illnesses. OSHA, Improve Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29623 -29694 (May 12, 2016).

OSHA’s new rule regarding workplace safety and injury reporting – the Recording and Reporting Occupational Injuries and Illness Rule – took effect January 1, 2017.

The new reporting requirements will be phased in over two years:

• Establishments with 250 or more employees in industries covered by the record keeping regulation must submit information from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

• Establishments with 20-249 employees in certain high-risk industries must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

OSHA will cleanse the data of personal identification and post the information online.

Considering the January 1, 2017 effective date, if you have not already done so, now is the time to once again review your drug and alcohol testing policies. The rule changes prohibit automatic testing in connection with any accident. In its comments to the final rule, OSHA stated that “blanket post-injury drug-testing policies deter proper reporting” of injuries to the agency. “To strike the appropriate balance here, 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.” So, for example, it would not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury resulting from a lack of machine guarding or a tool malfunction, OSHA said. Before a drug test is conducted, “there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness,” OSHA said.

In its policy review, employers should seek to eliminate any language suggesting that post-accident testing is warranted anytime a workplace incident occurs, or language that otherwise discourages employees from reporting an accident out of fear that a drug/alcohol test or some form of retaliation may result. Policies should also make clear that post-accident testing will only be conducted under certain reasonable circumstances.

Consider implementing a procedure for determining when a drug and alcohol test is proper. The procedure should include a thorough investigation and objective criteria for evaluating when a situation merits drug and alcohol testing. Any investigation and decision to test an employee should be well-documented.

While in review of the drug and alcohol policy, the employer should also address any changes in their jurisdiction on marijuana use.

This article is a publication of MWH Law Group LLP and is intended to provide general information regarding legal issues and developments to our clients and other friends. It should not be construed as legal advice or a legal opinion on any specific facts or situations. For further information on your own situation, we encourage you to contact the author of the article or any other member of the firm.

© 2017 MWH Law Group LLP. All rights reserved

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