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OSHA Expands its Reach Far Beyond Traditional Safety Concerns!

Tuesday, June 21, 2016
OSHA Expands its Reach Far Beyond Traditional Safety Concerns!
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By now, many employers are aware of the agency’s recent final rule (OSHA Now Requires Electronic Recordkeeping) requiring affected employers to report their OSHA 300 log and 300A information electronically beginning in July of 2017.

The accurate completion of OSHA logs and 300A summary information is more critical than ever because the agency will have ready access to an employer’s injury and illness history.

In addition to the requirement for electronic reporting, the agency also issued clarification regarding actions employers are prohibited from taking that might discourage employees from reporting injuries. OSHA also requires employers to develop procedures for employees to report injuries and provide training in those procedures. These aspects of the new regulation must be in place by November 1, 2016.

Agency Concerns Regarding Underreporting:

Included in the final rule are provisions to prevent employers from discouraging the reporting of work related injuries and illnesses. In a far-reaching interpretation of what “discouraging reporting” means, the agency has determined the following actions or programs may violate an employee’s rights:

  • Mandatory post-accident drug testing
  • Safety incentive programs with rewards for no injuries
  • Disciplinary action for safety violations resulting in injuries
  • Disciplinary action for the late reporting of injuries

Mandatory post-accident drug testing:

The agency will issue citations to employers who conduct blanket post-accident drug testing if it determines the drug test was administered for injuries not directly influenced by intoxication. For example, the agency believes some soft-tissue injuries are not likely to be influenced by intoxication, therefore, post-accident drug testing in such cases is prohibited as it may discourage employees from reporting the injury.

Safety incentive programs:

In the final rule, OSHA now clearly prohibits employers from implementing safety incentive programs that reward an employee, or group of employees, for not experiencing a work related injury. OSHA believes such programs discourage employees from reporting injuries. The agency prefers employers incentivize employees by offering rewards for safety suggestions, or providing rewards to employees who participate in safety training sessions.

Disciplinary action for safety violations:

A strong disciplinary action process for employees who violate safety rules is a fundamental element of all effective safety programs. OSHA cautions, however, against disciplining employees for safety violations resulting in an injury, unless the employer also disciplines other employees for similar violations that do not result in injuries. The agency will issue citations if they are able to demonstrate the employer issues disciplinary action more often in cases where an injury is involved.

Disciplinary action for late reporting of injuries:

In a move that contradicts sound risk management policy, the agency warns against disciplining employees for late reporting injuries. OSHA worries employees who are disciplined for late reporting injuries with vague symptoms, such as soft tissue injuries, might be discouraged from reporting them when the symptoms become apparent.

Procedures for Reporting Work-Related Injuries:

The new recordkeeping rules and clarifications require employers to develop “a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately”. The agency also clarifies, “A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness”.

The new standard does not specifically require this “procedure” consist of a written document, but it could be difficult to establish such procedures exist without a company- specific, written document in place.

Employee Training:

OSHA also requires all employers to train or, as they refer to it, “inform” employees of the procedure for reporting work-related injuries and illnesses.

The new standard requires employers specifically inform each employee that:

  • Employees have the right to report work-related injuries and illnesses
  • Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries and illnesses

Documentation of this training is not specifically required in the standard, but would be necessary to establish compliance as the result of an inspection.

Employer Response to New Standard:

The new standard, unfortunately, prohibits employers from using many long-standing and successful risk management practices and policies such as mandatory post-accident drug testing, safety incentive programs, and disciplinary action for the late reporting of injuries.

Because these programs are so important to the success of an employer’s safety and risk management program, we don’t recommend they be entirely abandoned. Policies should be carefully reviewed and nuanced to avoid potentially non-compliant language and supervisors should be trained in how to apply revised procedures and policies.

Because of the complexity of provisions in this new law, we recommend you consult with a Horton Safety Consultants representative in crafting new policies and procedures prior to the November 1, 2016 deadline. Our consultants are prepared to help you navigate these complex and restrictive provisions while still maintaining important control over your risk management program.

Material posted on this website is for informational purposes only and does not constitute a legal opinion or medical advice. Contact your legal representative or medical professional for information specific to your legal or medical needs.

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