OSHA ‘Final Rule’ Changes Reporting, D&A Testing

In the commonwealth, the Federal Occupational Safety and Health Administration covers most private-sector employers.

Workers at state and local government agencies—i.e., cities, counties, boroughs, townships, public school districts, and the State System of Higher Education—are not covered. Nor are the self-employed or immediate members of farm employers.

“But even without OSHA coverage, most organizations realize that safety makes good business sense: Accidents cost money and impact other areas of the business such as production, quality, the environment, and customer service,” said Matthew N. Olphin, vice president, risk control services of Murray Securus.

Most businesses don’t want their workers to be hurt, and safety is good for quality and morale. So a lot of businesses follow OSHA rules and regulations even if they don’t have to.

Under OSHA, employers must provide their workers with worksites free of recognized serious hazards. To help prevent work-related illnesses and injuries by learning from past accidents, employers who have to keep injury and illness records (some OSHA-covered employers do not) are required to keep track of their workers’ injuries and illnesses by recording them in the OSHA 300 Log. The log is a listing of certain work-related injuries and illnesses that occurred during the calendar year.

But under a final rule that became effective Jan. 1, OSHA revised its requirements for recording and submitting records of workplace injuries and illnesses. Some of this recorded information must be submitted electronically for posting to the OSHA website.

“While OSHA has always required an annual workplace posting of the OSHA 300A Summary, which provides limited injury and illness information, it has never before required electronic submission of more detailed workplace injury and illness information as of now,” Olphin explained.

The goal is to encourage employers to increase their prevention efforts and enable researchers to examine these data. The final rule also includes provisions that encourage workers to report work-related injuries to their employers and prohibit employers from retaliating against workers for making these reports.

“The final rule will provide OSHA with data to help the agency improve allocation of compliance assistance—assistance it gives employers who want to improve their safety standards,” Olphin said.

Public disclosure of the data is expected to “nudge” employers to reduce work-related injuries and illnesses.

Electronic submission requirements apply to establishments with 250 or more employees that are currently required to keep OSHA records, or those with 20-249 employees in certain industries with historically high rates of occupational injuries and illnesses.

OSHA can compare industries and disclose data on its website. This is a kind of “social engineering,” though some people feel it shames employers and causes competition, Olphin said.

It’s unclear if employers will not be required to submit employees’ personal data or if the database will scrub such information if it’s submitted by accident. OSHA’s goal is to make sure that personal data are not recorded in the database.

What about the impact on these changes on drug and alcohol testing?

It’s common for many employers to do automatic drug and alcohol testing of an employee if there has been a workplace accident, although sometimes it’s one of those things that’s recorded in the handbook and glossed over, said Debra R. Franklin, vice president of HR Solutions at Murray Securus.

The OSHA final rule doesn’t prohibit drug testing of employees after a workplace accident; it only prohibits employers from using automatic post-accident drug testing, or the threat of it, as a form of retaliation against employees who report injuries or illnesses.

“OSHA’s perception is that automatic post-accident testing has the effect of discouraging employees from reporting workplace injuries,” said Franklin.

OSHA’s rule also does not supersede other state or federal laws that otherwise require employers to conduct blanket post-accident testing—for example, the Department of Transportation’s rules for CDL drivers.

“Employers still retain managerial discretion in deciding when to test in the event of a workplace accident, so I don’t believe the practical impact of this rule will be as severe as some people think,” Franklin pointed out.

According to the provisions of the new rule, each incident must be determined as it occurs; if the employer determines the worker’s eyes don’t look right or it’s not reasonable for the accident to have occurred without drug or alcohol involvement, the employer can test.

“But there’s no standard for ‘reasonableness’ articulated in the rule,” Franklin said. “That means that we will only learn what ‘reasonable’ really means when cases under this rule are litigated.”

OSHA is essentially asking managers to manage, although it’s easier to have a blanket rule.

“This gives employers some latitude, but also puts them in a tough spot,” she continued.

Moreover, according to Franklin, what no one is talking about is the need to train management staff on how to recognize when drugs and alcohol could come into play—especially when it’s an industry, like manufacturing, that’s high risk.

How do you identify drug and alcohol problems?

“This is very important,” Franklin said. “By training managers and supervisors to recognize the signs of drug or alcohol impairment, an employer can markedly improve its chances of having a decision to send an employee for testing found reasonable by a court.”

Employers can still require testing as a condition of employment.

When employees self-report drug or alcohol use, it may qualify those individuals for protection under ADA or the Family Leave Act if they say they need help and want to be sent to rehab.

“If an employee self-identifies as having a problem with drugs or alcohol prior to being involved in a workplace accident or otherwise violating an employer’s policies, that would be an excellent time to reach out to a human resource consultant or labor and employment attorney for advice and assistance,” Franklin said. “This is a very complex area.”

With the new administration in Washington, the heads of the federal agencies, including OSHA, will soon be replaced, and agendas may change. BW