OSHA’s New Rules on Reporting of Workplace Injuries

Do you have a policy in your employee handbook which looks like this?
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 Administration (OSHA).

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 testing policies.

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.

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Paul Hilton is a certified Human Resources Consultant, located in Columbia, SC.
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