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OSHA’s New Rule Requires Electronic Filing and Ditching the Post-Accident Drug Test

12/5/16

By: Daniel Nicholson

Employers may need to rethink their onsite injury and illness policies after the Occupational Safety and Health Administration (OSHA) released a new rule titled “Improve Tracking of Workplace Injuries and Illnesses.” With the objective of improving the number and accuracy of reported workplace injuries, OSHA is now requiring that employers submit their onsite injury and illness forms with OSHA electronically, citing that by making such information available to the public it will “nudge” employers to focus on safety.  OSHA’s reporting website, which goes live in February 2017, will allow employers to enter onsite injury and illness data manually, upload a CSV file, or file through the employers automated recordkeeping system.

More significantly the new rule is challenging standard employer practices after an onsite injury including disciplinary actions, employee incentive programs for not having injuries (100 days injury free!), and even post-accident drug testing policies. Under the new rule employers are required to inform their employees that they may report work-related injuries and illnesses free of retaliation, and reform any policies that may deter or discourage employees from reporting. Citing to the decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 57 (2006) OSHA has stated that policies like the above could dissuade employees from self-reporting.

Challenges to the new rule have already been filed. In July of 2016 several large industry interest groups, including TEXO ABC/AGC, Inc., Associated Builders and Contractors, Inc., the National Association of Manufacturers, and the American Fuel & Petrochemical Manufacturers, brought suit against OSHA claiming that the new rule is too broad and goes too far (see TEXO ABC/AGC, et al. v. Thomas, et al., No. 3:16-CV-1998 (N.D. TX July 8, 2016)). Their motion to stop the rule from being enacted while the case is pending was denied and so the rule is set to go into effect on January 1, 2017. Construction companies with 20-249 or more employees must submit the information from their 2016 Form 300A by July 1, 2017.

For any questions, please contact Daniel Nicholson at [email protected].