OSHA’s New Rules on Reporting of Workplace
Do you have a policy in your employee handbook which looks like
Any employee who has a reportable Workers’ Compensation
injury or illness will be required to undergo a drug test.
Many employers have this or a similar statement in their employee
handbooks. If so, then you may need to incorporate possible revisions
due to new regulations from the Occupational Safety and Health
On August 10, 2016, OSHA’s final rules on electronic reporting
of workplace injuries went into effect. OSHA began enforcement
of the anti-retaliation provisions of the new rule on December
1, 2016. The new rules require employers to implement “a
reasonable procedure” for employees to report workplace injuries
that does not deter or discourage employees from making such reports.
As a result, these new OSHA rules may impact many employers’ drug
Many employers have a drug/alcohol testing policy that mandates
testing following a workplace accident or injury. However, according
to the commentary accompanying the new rules, OSHA views mandatory
post-accident drug/alcohol testing as a possible deterrent to the
reporting of workplace safety incidents. As such, an employer must
be wary of continued reliance on such “automatic” testing
policies and procedures.
OSHA has always required employers to set up a way for employees
to promptly report work-related injuries and illnesses. According
to the new rules, however, the reporting procedures must be “reasonable.” In
this regard, OSHA has cautioned that a procedure that would deter
or discourage reporting is not reasonable.
According to the OSHA commentary: “although drug testing
of employees may be a reasonable workplace policy in some situations,
it is often perceived as an invasion of privacy, so if an injury
or illness is very unlikely to have been caused by employee drug
use, or if the method of drug testing does not identify impairment
but only use at some time in the recent past, requiring the employee
to be drug tested may inappropriately deter reporting.” Consequently,
in order to comply with this new OHSA directive, drug
testing policies should 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
caused by drug use. Although “reasonable suspicion” is not a
prerequisite for “post-accident” testing, there should
be at least a “reasonable possibility” that use by
the employee was a factor in the reported injury prior to testing.
Therefore, if an accident/injury occurs and an employer wishes
to conduct a drug test, under these new OSHA rules, the employer
must be able to articulate objective evidence that led the employer
to believe the accident was a result of drug or alcohol use. Courts
generally have upheld post-accident testing where an employer has
reasonable suspicion that the employee involved in the accident
was under the influence of drugs or alcohol and where there is
a link between the accident and the drug use.
Applying a policy
in an inconsistent manner could cause the employee to believe that
he or she is being singled out or discriminated against for another
reason. Drug-testing policies are no exception. Therefore, if an
employer decides to implement a post accident drug-testing policy,
it should be careful to act evenhandedly with all employees in
strict accordance with written policies.
A company’s best defense against the potential expense and
aggravation related to federal or state law violations is to proactively
review and revise as needed their Human Resources policies, handbooks,
hiring procedures, compensation, benefits, training programs, communications
tools and other functions. The professionals of PHHR are ready
to assist your organization maintain compliance with the latest
state and federal mandates.
Paul Hilton Human Resources Consulting works with our clients to insure that all required documentation is correct and sufficient to successfully defend against a claim to any unemployment compensation commission.
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