The Occupational Safety and Health Administration's (OSHA) new rule to Improve Tracking of Workplace Injuries and Illnesses takes effect in two phases on August 10, 2016 and January 1, 2017. Beginning August 10, 2016, the rule requires employers to have a reasonable procedure for employees to promptly and accurately report work-related injuries and illnesses. Beginning on January 1, 2017, covered employers will begin electronically submitting the injury and illness reporting forms to OSHA, and OSHA will publish the results on a website open to the public.

By August 10, 2016, employers must amend their injury and illness policies to (a) expressly state that employees have a right to report work-related injuries and illnesses, (b) provide a reasonable procedure for employees to report such workplace injuries and illnesses, (c) not deter or discourage employees from reporting such injuries and illnesses, and (d) assure employees that the employer will not discriminate against nor retaliate against them for making such reports.

While criterion (a) and (d) are self-explanatory, some explanation of criterion (b) and (c) is necessary. According to the comments to criterion (b), OSHA will consider unreasonable any rule requiring immediate reporting, particularly if there is the possibility of discipline if the employee fails to immediately report the injury or illness. OSHA considers some injuries and illnesses, such as repetitive stress, impossible to report immediately because the employee is often unaware of the injury or illness until some period of time after the onset of the condition. OSHA will consider requiring employees to report injuries as soon as reasonably known or recognized by the employee as reasonable.

According to the comments to criterion (c), an employer's rule may not contain any incentives or disincentives that would cause a reasonable person to not report a workplace injury or illness. For example, a safety program where employees who do not have a work-related injury or illness are eligible for a raffle drawing or safety bonus would violate the rule because the raffle or bonus is an incentive to not report an injury or illness.

As we discussed in our June 17, 2016 e-alert on Automatic Post-Injury Drug Testing (click here), OSHA will consider automatic post-injury drug testing a disincentive to reporting injuries and illnesses. Post-accident policies must now require the employer to make an individualized assessment of whether the potential use of drugs or alcohol caused the injury. For example, assume Johnny is driving a hi-lo and backs into a stack of pallets, which then fall on Mary, causing injury. The employer may test Johnny because his inattention and/or recklessness could be because he was under the influence of drugs or alcohol. However, the employer could not test Mary since it is "very unlikely" that her injuries were caused by any potential use of drugs or alcohol by her. Therefore, existing drug-testing policies and procedures should remove any provision requiring automatic drug testing and replace such language with a requirement that the employer will conduct an individualized assessment in each case.

We recommend employers take the following steps prior to August 10, 2016:

• If you do not have an injury and illness reporting procedure, create one.
• Review current safety policies to ensure that they do not provide a disincentive to employees reporting injuries or illnesses, but do expressly prohibit discrimination or retaliation against employees who report injuries or illnesses.
• Review safety programs to ensure they do not provide a disincentive to employees reporting injury or illness.
• 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.
• Train supervisors how to identify impaired employees and how to document any incidents that may trigger OSHA reporting.
• Train employees on policy and reporting procedures and emphasize that the employer will not discriminate or retaliate against an employee who reports injuries or illnesses.