A little known subsection of a new OSHA regulation can significantly impact, and may require changes to:  1) employer post-accident drug testing programs, 2) employer policies about employee injury reporting, and 3) employer sponsored safety incentive programs.  In May, OSHA published its Improve Tracking of Workplace Injuries and Illnesses Rule, 81 Fed. Reg. 29623 (May 12, 2016), which focuses primarily on requiring employers electronically to file their workplace injury/illness data with OSHA starting in 2017.  Importantly, a subsection of this Rule sets out a new anti-retaliation procedure for employers with the effective date recently extended by OSHA to November 1, 2016.  It is OSHA’s interpretation and intended enforcement of this anti-retaliation provision which may be a surprise to, and a potential problem for, employers in general.

Specifically, OSHA created a “Reasonable Reporting Procedure” in 29 C.F.R. § 1904.35(b). This regulatory procedure generally:

1. Requires employers to inform employees of their right to report workplace injuries and illnesses free from retaliation;
2. Specifies employers’ reporting procedures must be reasonable and not deter or discourage employees from reporting; and
3. Creates a new administrative requirement prohibiting the discharge or other discrimination by employers of employees reporting illnesses or injuries that is in addition to the existing statutory prohibition against retaliation.  

 Although this Reasonable Reporting Procedure may appear manageable at first glance, OSHA’s reported interpretation of it will likely create compliance challenges for many employers.

Post-Accident Drug Testing
Currently, many employers require an employee to submit to drug-testing anytime the employee is involved in an accident or injury/illness situation, regardless of fault.  However, based on the new Reasonable Reporting Procedure, OSHA believes post drug-testing policies should be limited to situations where “employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”  As OSHA has stated, “there should be a reasonable possibility that drug use was a contributing factor to the reported injury or illness in order for an employer to require drug testing.”

This position by OSHA is contrary to many existing employer drug testing policies, and if enforced, will require employers to change post-accident drug testing policies.  Under OSHA’s position, it is questionable whether employers could comply and still do employee post accident drug testing as drug testing in most instances can only detect the presence and possible quantity of a controlled substance in the employee’s body, but cannot prove an impairment.  Importantly, OSHA recognizes that if another agency requires testing such as the Department of Transportation for interstate truck drivers, then this would be an exception.  For most employers drug testing will come down to a case by case evaluation with reasonable suspicion a part of the analysis.  Again, the use of a blanket drug testing policy after all accidents and injuries could violate the new procedure as currently interpreted by OSHA.

Employee Reporting
OSHA is taking position that employer policies limiting the employee reporting period to a set time such as immediately upon injury or accident, on the same work day, or by the next work day would violate the regulation.  In OSHA’s view, an employee should be required to report an incident only after the employee “becomes aware” of an injury or illness, which could mean several days or weeks after the incident occurred. OSHA’s position will require employers to amend existing policies and do a case by case analysis concerning the timeliness of an injury/illness report rather than having a one-rule fits all policy.

Safety Incentive Programs
OSHA indicates it believes safety incentive programs rewarding employees for accident free work periods such as cash awards, prizes, lunches, and the like violate the new procedure.  OSHA’s reasoning is that incentive programs based on no recordable injuries or illnesses deters employees from accurately reporting them.  As provided under the new procedure a reporting procedure is not reasonable which would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.

Due to the Reasonable Reporting Procedure, employers should review existing incentive programs and consider whether to modify or eliminate them.  For instance, some employers have ceased using incentive programs and focus more on encouraging management to train employees, enforce safe work practices, and conduct meaningful internal safety inspections as ways to more effectively promote safety in the workplace. 

Enforcement
Although in Section 11(c) of the OSH Act, 29 U.S.C. § 660(c), anti-retaliation has always been part of the law, it is enforced solely by the Department of Labor in federal court after an initial investigation by OSHA.  Under Section 11(c), employees must report an alleged retaliation incident within 30 days of occurrence or else such claim is barred by limitations.  Now, in addition to Section 11(c), OSHA is attempting to create its own separate enhanced enforcement mechanism as an administrative matter to be handled like general safety violations with potential civil penalties up to $124,709 per violation and other equitable and make-whole relief like back pay and reinstatement, if appropriate.  The time limit for employee reporting a retaliation incident would be extended up to six (6) months from the incident under the new procedure, not the 30 day limitation under the statute.  

Thus, employers are likely to see more claims for alleged retaliation with potential civil penalties handled exclusively by OSHA through an administrative procedure before an administrative law judge rather than the more limited statutory procedure provided in the Act.  A court challenge was filed in July 2016 by several concerned employer groups, but whether the litigation will be successful in enjoining the new regulation is uncertain at present.

Summary 
For now, the effective date for the Reasonable Reporting Procedure is scheduled for November 1, 2016. Employers should use the interim time to assess their employee policies concerning post-accident drug testing, the time for reporting injuries, and incentive programs. Employers should consider whether changes are warranted.  Certainly, if the Reasonable Reporting Procedure is actually implemented rather than being enjoined, employers should be ready to make necessary changes to their policies to comply without delay in order to avoid possible violations and resultant penalties.