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The New OSHA Rules: No More Secrets

On Thursday, May 12, 2016, OSHA changed the way the workplace injury game is played. And there are many who believe the playing field was definitely tipped in OSHA’s direction.

With the sweep of a pen, new regulations were implemented where the U.S. Occupational Safety and Health Administration (OSHA) that now require employers to submit detailed annual reports of workplace injuries and illnesses for publication online on a public website. Think of this site as a kind of cyber-clothesline, where a company’s dirty laundry will now be hung up for all to see. This is the same information that employers were already collecting and typically revealed to OSHA only during inspections or surveys.

Up until now, OSHA had only been able access one percent of all workplace injury reports, mostly through audits and surprise inspections. But what they really wanted and needed was the remaining 99 percent, so they came up with a plan where instead of OSHA trying to find the infractions, employers would now be required to report all incidents. It’s a classic example of if someone isn’t catching enough fish, they figure out a way to have all the fish in the lake jump into the boat “voluntarily.”

For those not already up on the new regulations, the new rule provisions on reporting, which took effect on Jan. 1, 2017, require various employers (based on establishment size) to submit injury and illness data electronically to OSHA.

Establishments with more than 20 employees in specified “high-risk industries,” such as agriculture, utilities, construction and manufacturing, must submit Form 300A by July 1 in 2017 and 2018, and by March 2 every year thereafter. For those with more than 250 employees, OSHA requires all establishments already required to keep OSHA records to submit information from their 2016 injury and illness recordkeeping Form 300A by Dec. 1, 2017. Employers are also required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and for every year thereafter, the information must be submitted by March 2.

For those employers who utilize an alternative to the OSHA Form 301, such as a workers’ compensation first report of injury, as expressly allowed by the existing rules, these changes may now require that the employer also complete the OSHA Form 301. It is unclear how this will work, but it is assumed OSHA will provide clarification on this subject shortly.

To simplify it, here is how the new rules fall into place:

The rule also invokes penalties for employers that take actions deemed as retaliation against employees who report accidents. These rules will be tough for employers that have safety incentive programs or that require drug testing of each employee after an accident.

Requiring drug tests for those with job-related injuries also could be seen as pressure not to report an accident. Understandably, many employers are concerned with the provisions of OSHA’s new rule, claiming drug testing after an accident occurs is a critical tool to keep their organization safe. OSHA agrees, but states employers cannot use drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.

The new OSHA regulations stress the need for a balanced approach, one which requires employers to 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 abuse by using the drugs.

For example, per OSHA, it would not be a reasonable request to drug test an employee who reports a bee sting, a repetitive strain injury or an injury caused by a lack of machine guarding or tool malfunction.

Employers need not specifically suspect drug use caused an accident before implementing testing, but the reporting employee should at least suspect a reasonable possibility that drug use was in play and a contributing factor in the reported injury or illness, before an order is given for drug testing.

That being said, employers should take the following steps:

  1. update injury and illness reporting procedures;
  2. if the company does not have an injury and illness reporting procedure, create one;
  3. revise post-injury drug testing policy to eliminate automatic post-injury drug testing and replace it with a policy that requires an individual assessment of each employee and accident; and
  4. train supervisors on how to identify impaired employees and how to document any incidents that may trigger OSHA reporting.

In the end, the new rules will benefit those employers who have already committed to engraining a safety culture for their organization and provide a “nudge” (which may feel like a push to some) to those employers who put safety on the back burner. No longer will a “strong safety culture” be a plus or a bonus for an organization.

The new rules now require employers to take safety seriously by further reinforcing the need and importance of establishing a strong safety culture—one that trickles down from the C-suite to the workers on the floor. Because now that a company’s injury reports are available for public viewing by its customers, competition, contractors and, most importantly, business prospects, it’s extremely important that a company puts safety above all other concerns.

It’s equally important that all reporting be accurate, and that perhaps the best course of action is to enlist the services of someone primed to handle the task. Any report generated should show that the company advocates having healthy and safety-conscious employees, because once that misinformation is out there, it’s a bell that can’t be unrung. An errant report has the potential to paint any company in shades of doubt, and should be avoided at all costs. And the key is timely and accurate reporting.

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