November 28, 2016
Expert's Corner

New OSHA rules = no more secrets

Dustin Boss
Randy Boss

Earlier this year, the U.S. Occupational Safety and Health Administration (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 OSHA will 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 all your 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.

OSHA says its intent behind the new regulations isn't malicious or to cause harm to businesses. According to Dr. David Michaels, the assistant secretary of labor for OSHA, "Our new rule will 'nudge' employers to prevent work injuries, to show investors, job seekers, customers and the public they operate safe and well-managed facilities."

Up until now, OSHA had only been able to access 1 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 you aren't catching enough fish on your next trip out on the lake, come up with a way to have all the fish in the lake actually jump into the boat "voluntarily."

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

Establishments with over 20 employees in specified "high-risk industries," such as agriculture, utilities, construction and manufacturing industries, must submit their Form 300A by July 1 in 2017 and 2018, and by March 2 every year thereafter.

For those with over 250 employees, OSHA is requiring these establishments to submit information from their 2016 injury and illness recordkeeping Form 300A by July 1, 2017 as well. However, the following year, these 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.

The rule also invokes penalties for employers that take actions deemed as retaliation against employees who report accidents. These rules go into effect Aug. 1, 2017, but OSHA isn't enforcing them until Nov. 1, 2017. 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 can't 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 that 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, we recommend employers take the following steps:

1. Update your injury and illness reporting procedures.

2. If you do not have an injury and illness reporting procedure, it is important to create one.

3. Revise your 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.

4. Train supervisors on how to identify impaired employees and how to document any incidents that may trigger OSHA reporting.

Dustin Boss and Randy Boss are Certified Risk Architects with Ottawa Kent Insurance in Jenison, MI.

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