In May, OSHA announced its Electronic Recordkeeping Rule. The effective date of the rule was supposed to be August 10, 2016, but has been delayed. Why? Because on July 8, eight Texas employer groups, including the National Association of Manufacturers, filed suit against OSHA attempting to abolish the rule by requesting an injunction blocking its implementation or at least as the rule would apply to employer safety incentive programs and mandatory post-incident drug testing. Given that the case is still working its way through the court system, OSHA had no choice but to extend the rule’s effective date from August 10, 2016, to November 1, 2016. Further delays may still be on the horizon.
Part 1 to the Rule- Electronic Filing of OSHA Forms
Part 1 of the rule requires more work for employers, but it is not being legally challenged. The main purpose of the rule deals with a phased-in requirement that many employers electronically report their workplace injury data beginning in January, 2017.
Generally, until now employers had to complete the 300 logs, 301 forms, and 300A summaries but they only had to be provided to OSHA if they were the subject of an OSHA investigation. Under the new rule, starting in mid-2017, OSHA’s record-keeping regulation has been amended to require every establishment with 250 or more employees at an individual location to annually upload OSHA logs, forms, and summaries electronically. In addition, the 300A summaries will have to be submitted electronically by companies in industries viewed as “high hazard industries,” (i.e. construction, manufacturing, utilities and agriculture) with 20 to 249 employees.
Part 2 of the Rule- The Proposed Anti-Retaliation Rules
When the rule was first published in mid-May, the rule contained anti-retaliation provisions scheduled to come into effect 90 days later. The rule initially provided that employers would be required to inform employees of their right to report workplace injuries and illness; inform them that employers were not permitted to retaliate; establish and widely communicate a reasonable procedure for employee reporting; and, provide employees with access to non-redacted illness and injury records. This rule now gave OSHA the ability to issue a citation and penalty related to retaliation, as opposed to the statutory framework which requires employees to file a complaint and commence an action in a federal court.
No Post-Accident Drug Testing?
Digging deeper, the rule also requires employers to establish a reasonable procedure for reporting work-related injuries and illnesses promptly and accurately, and further states that a procedure is not reasonable if it would “deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” OSHA also suggested that it will take action against any employer that has in place a post-accident drug-testing program. This is true despite the fact that some companies and the DOT have had some types of post-accident testing in place for decades.
Another argument by OSHA is that a post-accident drug testing program could discourage employees from reporting illnesses or injuries because they or their co-workers may no longer be eligible for safety program incentives. Because many employers have mandatory post-accident drug-testing systems in place, this interpretation has resulted in a lot of criticism and negative feedback which spurred the court action.
OSHA asserts that employer 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.” OSHA stated there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness.
How Will This All Shake Out?
I expect the employer groups to succeed at some level, but I do not see the rule getting voided in its entirety. Despite this lawsuit and the possibility that parts of the rule will be voided or modified, OSHA is on record stating that once the rule becomes effective, it could be considered a violation of the law for employers to automatically conduct post-accident drug testing of injured employees. My guess is that the employer groups are going to probably have to take things beyond the injunction level as some point in time to get a ruling on their legal right to conduct post-accident drug testing. I expect the DOT to also chime in on this subject matter.