OSHA has announced a new final rule enacted to revise its current regulation on Recording and Reporting Occupational Injuries and Illnesses (the “Final Rule”).  The Final Rule will require employers to electronically submit information that they have been submitting non-electronically under the current regulations.

While this rule has a benign title and purpose, it also contains a broad anti-retaliation provision that gives an OSHA inspector the right to provide a citation for workers’ compensation retaliation if an employer 1) has a “blanket” policy of drug testing employees who report workers’ compensation injuries; 2) has a policy that requires employees to immediately report workers’ compensation claims, or 3) has a safety-incentive policy that provides individual or group bonuses for having an injury-free year.  These provisions are bound to affect many employers who currently have one or more of these practices. 

The blanket drug testing provision of the rule does not apply to employers that are required to conduct post-injury drug tests under state or federal law.  Therefore, employers who are required to drug test by the Drug-Free Workplace Act of 1988, which affects federal contractors, and those in the subcontracting chain, and employers who are regulated by the Federal Carrier Motor Safety Regulations will still be able to conduct post-injury drug tests.

The rule goes into effect on January 1, 2017.  At least one lawsuit has been filed in the United States District Court for the Northern District of Texas, Texco ABC/AGS, Inc., et al. v. Perez, Civil Action No. 3:16-CV-1998 (Jul. 8, 2016 ND TX), which requests that the Court enter a declaratory judgment that certain provisions of the Final Rule are unlawful, including provisions that limit incident based employer safety incentive programs and/or routine mandatory post-accident drug testing programs.  If the Texas Court enjoins implementation of the rule, then its implementation will be delayed or even prevented.

If the rule is not enjoined, then employers must revise their employee handbooks and their drug testing policies.  It is recommended that employee handbooks have a more detailed workers’ compensation section that provides information about an employee’s right to report work-related injuries and illnesses, and how to do so.  There should be no policy that requires immediate reporting of injuries, and employers must revise any safety incentive programs to remove any provision of bonus or incentive related to being injury free.

With respect to drug testing policies, employers not regulated by a state or federal law that requires post-injury drug testing must move from a blanket drug testing policy to a reasonable suspicion policy.  Reasonable suspicion can occur by the nature of the injury, and by observations about whether the individual has consumed drugs or alcohol.  Reasonable suspicion must be carefully documented.

The broad provisions of this new anti-retaliation provision will catch many employers by surprise.  The Washington Division of Occupational Safety and Health (DOSH) that implements the Washington Industrial Safety and Health Act (WISHA) is already in phase three of its rule-making process to implement the new OSHA rules.  The link to the Washington website regarding the new rules is: http://www.lni.wa.gov/Safety/Rules/WhatsNew/Proposed.asp.  DOSH does not see that the new OSHA rules add much to the rules that existed in Washington.  Employers in Washington must follow the drug testing rules that already existed.  Any alleged claim of retaliation will likely be based on employee complaint, rather than DOSH inspection, and will be inspected by DOSH’s unit that investigates health and safety discrimination claims.

Oregon OSHA is having rule-making meetings regarding this controversial new provision.  Absent a strong showing by employers about this provision, OR-OSHA has indicated that it will enact the provision in January.  Information about the dates and times of the rule-making can be found at this link:  Direct link to the proposed rule-making.  For more information on this new OSHA rule, visit OR-OSHA’s website at osha.oregon.gov.  Click “Rules and laws” in the “Topics, rules, guidelines” column and view OR-OSHA’s proposed rules, or select other rule activity from this page.

If you have questions about this rule, or wish to discuss revisions to your handbook, please contact Jean Back at JBack@schwabe.com, or your employment advice attorney.

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