Not Today: New OSHA Rule Encounters Pushback, Delay

They say, "No good deed goes unpunished." I’m not sure who they are, but I have a feeling this saying might resonate with the Occupational Safety and Health Administration in the wake of its decision to delay enforcement of parts of a new injury-reporting rule that had been slated for Aug. 10. 

Back in May, OSHA issued a long-awaited final rule requiring certain employers to electronically submit injury and illness information that’s tracked on OSHA Forms 300, 300A and 301. OSHA plans to use the information to create the largest publicly available data set on workplace injuries and illnesses, enabling researchers to better study the causes, identify new safety hazards and evaluate the effectiveness of injury and illness prevention activities. 

As a way to ensure the accuracy and completeness of the data, OSHA’s rule requires employers to have reasonable procedures in place for employees to report work-related injuries. Employees are supposed to feel free to come forward, which means any form of retaliation or deterrent that keeps workers from reporting injuries or illnesses could violate the rule. 

Here’s where it gets interesting. Lots of employers offer safety incentives based on the absence of reportable incidents, or they require drug testing following workplace accidents. And yet OSHA said on its website that the new rule would target employer programs or policies that might inadvertently discourage workers from reporting injuries. 

If employers are prohibited from having programs that discourage workers from reporting injuries, can they still conduct post-accident drug testing? According to OSHA, the rule doesn’t prohibit drug testing, but it does prohibit employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. Further, if an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, said OSHA, the employer's motive would not be retaliatory and there would be no conflict with the new rule. 

Meanwhile, employers that conduct drug testing as a way to earn a discount on their workers’ compensation premiums are scratching their heads over where they stand because participation in such drug testing programs is not mandatory under workers’ comp laws and therefore might not be protected from challenges that they are retaliatory. 

These non-retaliation requirements were set to take effect Aug. 10, but OSHA recently announced in a memo that it would delay enforcement until Nov. 1, 2016, to "conduct additional outreach to the regulated community." 

The announcement of the delay came right around the same time that several employer groups filed a complaint in federal court. A few days later, in a motion seeking to block the non-retaliation requirements, the groups said the new rule "will for the first time in the history of the Occupational Safety and Health Act prohibit incident-based employer safety incentive programs and routine mandatory post-incident drug testing programs." 

This legal battle could take a while to play out. In the meantime, the questions continue. OSHA’s website includes a fact sheet and a list of frequently asked questions about the new injury and illness reporting rule. It might be a good idea to take a look between now and the first of November.

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