Updated OSHA Rule Encourages Employee Workplace Injury Reporting
A new U. S. Occupational Safety and Health Administration (OSHA) rule will take effect November 1, 2016. The new OSHA rule encourages employees, and under certain circumstances, requires employers to report workplace injuries, and it also makes it clear that employers cannot threaten drug tests as a penalty following workplace injuries or illnesses as a means to deter employees from reporting an ailment or incident.
Retaliation after workplace injury reporting is illegal. It has always been illegal but the new rule provides OSHA with additional tools to cite an employer for retaliation. The new OSHA rule, “prohibits any person from discharging or otherwise discriminating against an employee who reports a fatality, injury, or illness.” OSHA now has the authority to cite employers for such acts of retaliation in the absence of a formal complaint by the employee.
You cannot be fired for reporting a workplace or work related injury or illness.
The new OSHA rule includes a dramatic change in the administration of drug tests following workplace injuries: “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.” One workplace injury considered inappropriate for drug testing would be, “repetitive strain injury or injuries caused by a lack of machine guarding, or a machine or tool malfunction.”
On January 1, 2017, the new OSHA rule will also require employers to report workplace injury and illness data electronically from OSHA logs, and this information will be made available to the public on OSHA’s website. Personal information will be removed to protect the identification of individuals.
After January 1, 2017, employers are required to:
- Prohibit related retaliation after workplace injury reporting
- Inform employees of their right to report workplace or work related injuries and illnesses
- Update procedures for work related injury reporting, so that it is not unreasonable or does not deter or discourage employees from reporting; and
- Discontinue general/blanket post-accident drug-testing policies (viewed as retaliation); and conduct drug-testing following work related injuries only if there is reasonable possibility of drug use for the individual employee involved
- work locations with 250 or more employees, and
- work locations with 20 to 249 employees in specific “high-risk industries” identified in the rule.
Industries or employers with 20 to 249 employees in any of the any of the “high-risk industries” listed in the rule are required to electronically submit workplace injury reporting next year.
Examples of industries that will be required to submit employee injury records electronically include: construction, manufacturing, consumer goods rental, nursing care facilities, ambulatory healthcare services, performing arts companies, postal service, amusement parks/arcades and many others that are not so obvious such as dry-cleaning/laundry services, department stores, grocery stores, and museums/historic sites/similar institutions. This incomplete list outlines a short list of the industries that OSHA requires to submit electronic injury reports.
If you or someone you know has been penalized or experienced retaliation after workplace injury reporting, speak to an experienced employment law attorney immediately. Wenzel Fenton Cabassa, P.A., is a Tampa employment law firm for employees.