OSHA’s new rule: what you need to know
December 13, 2016
By Lori Stewart, SPHR®, SHRM-SCP, HCS, Partner, Human Resources Consulting
The Occupational Safety and Health Administration’s (OSHA) post-accident drug testing and safety incentive rule has gone into effect as of December 1, 2016. Employers will now need to take a closer look at their policies and practices regarding work-related accidents and injuries. The rule impacts primarily three areas: safety incentives, reporting procedure and discipline, and drug/alcohol testing.
Safety incentive programs:
OSHA has determined that some employer incentive programs may discourage employees from reporting work-related injuries or illness. For example, a program that awards monetary bonuses or additional paid time off for having no accidents/injuries could be considered to discourage and even incentivize employees to not report.
However, conditioning a benefit on compliance with legitimate safety rules or participation in safety-related activities would not violate the rule. For example, raffling a prize or gift card each month for consistent compliance with legitimate workplace safety rules, such as using required hard hats or following lockout-tagout procedures, would not violate the rule.
Reporting procedure and discipline:
OSHA has also ruled that companies cannot stipulate how or when an employee must report and states that the reporting process must be “reasonable.” Employees are not necessarily required to report immediately or in person, depending on individual circumstances. The reporting policy must allow for reporting of work-related injuries and illnesses within a reasonable timeframe after the employee has realized that he/she has suffered a recordable work-related injury or illness and in a reasonable manner, which can include reporting by phone, email or in person.
It has also been determined that administering disciplinary action in some cases may violate this rule. Employers must now be very careful in administering discipline or taking adverse employment action against employees for accident/illness reporting. Employers are still free to discipline an employee for violating a known safety rule, but they must be able to prove a legitimate business reason for doing so ensuring the discipline was in no way administered for reporting an injury/illness.
The new rule does not prohibit employers from requiring post-accident/injury drug/alcohol testing. However, OSHA now prohibits drug testing employees for reporting work-related injuries/illnesses without an objectively reasonable basis for doing so.
Example: Testing an employee whose injury likely could not have been caused by drug use, such as a repetitive strain injury, or a slip and fall on a wet surface, would be a violation because drug use likely did not contribute to the injury. In cases like these, administering a drug test may be considered an unnecessarily punitive manner regardless of whether the employer has a reasonable basis for requiring the test.
Key things to consider:
- Ensure you have an effective, compliant reporting procedure in place that is not “unduly burdensome.”
- Ensure employees are in no way penalized for reporting or rewarded for not reporting.
- Ensure all post-accident/injury drug and alcohol testing is defensible and reasonable by OSHA standards.