Announcing a series of requirements that will begin to take effect August 10, 2016, OSHA released, on May 11th, its final rule to "modernize injury data collection to better inform workers, employers, the public and OSHA about workplace hazards." Tellingly, OSHA acknowledges in its accompanying press release that the rule is intended to "nudge" employers to enhance methods to prevent workplace injuries and illnesses. Apparently, OSHA is proceeding under the assumption that all employers, regardless of past safety history, require an external push to enhance workplace safety efforts. Included within the rule are a number of alarming pronouncements—discussed more fully below—regarding routine employer safety practices such as drug testing and incentive policies that may necessitate changing long-established routines.

Overview of the New Injury and Illness Recording and Reporting Requirements

Signaling a stark departure from traditional injury recording and reporting practices whereby employers track and maintain such information internally, the new rule will require thousands of employers to electronically submit these records to OSHA each year. OSHA will then publish this data online in a format that anyone with access to the internet—including competitors, prospective employees, shareholders, union organizers and disgruntled former employees—can presumably search, filter and copy for their own use, including further public dissemination. The data submission obligations will be phased in over two years, as employers with 250 or more employees must submit the required 300A Annual Summary by July 1, 2017, and employers with 20 to 249 employees in "high-hazard" industries must submit their 2016 and 2017 300A Summaries by July 1, 2017 and 2018, respectively.

Employers operating in State Plan states are covered, too, as the OSHA-approved state programs must adopt "substantially identical" requirements within six months. Accordingly, employers in California, Connecticut, Indiana, Maryland, Michigan and Virginia—among others—should begin preparations to comply with the new rule.

Although a portion of the rule does not go into effect until next year, employers must comply beginning August 10, 2016 with requirements relating to employee involvement in employer recordkeeping systems and discrimination/retaliation prevention. Although much of the attention paid to the new rule has focused on the electronic submission requirements, OSHA's commentary surrounding the discrimination prohibition suggests that this section may ultimately force employers to make changes to long-standing practices surrounding post-accident drug testing and safety incentive efforts.

The employee involvement portion of the rule, set forth at 29 C.F.R. § 1910.35, explicitly requires employers to "inform each employee how he or she is to report a work-related injury or illness" and "establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately." A procedure is not reasonable, according to the new rule, if it would "deter or discourage a reasonable employee from accurately reporting a workplace injury or illness." Further, employers must inform employees that they have the right to report injuries and illnesses, in addition to advising them that their employer is "prohibited from discharging or in any manner discriminating against [them] for reporting work-related injuries or illnesses."

OSHA Takes Aim at Post-Injury Drug Testing and Safety Incentive Policies

Taking a position in the final rule that is sure to alarm a wide range of employers, OSHA announced that "blanket post-injury drug testing policies deter proper reporting" of injuries. Although the rule does not make across-the-board drug testing a per se violation, OSHA instructs employers to utilize post-injury drug testing only where "there is a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness," and only where "the drug test can accurately identify impairment caused by drug use." OSHA suggests that employees who report bee stings, repetitive strain injuries or other injuries where drug use could not reasonably have contributed to the occurrence, should not be tested. Creating greater uncertainty, OSHA warns employers that even when the decision to conduct a post-injury drug test is reasonable, the agency may nevertheless conclude that the testing unlawfully deterred injury reporting and constituted retaliation if the drug testing procedure itself is punitive or embarrassing to the employee, whatever that means.

OSHA recognizes, however, that employers that conduct post-accident testing mandated by federal regulations (e.g., interstate transportation) or pursuant to state workers' compensation laws, many of which include "drug-free workplace" incentive programs, are not affected by the new rule. As such, an employer's efforts to comply with applicable federal regulations or state laws will not be viewed as retaliatory.

The new rule similarly takes aim at another behavior the agency has long sought to discourage—employer safety incentive and disincentive policies and practices. While this will not come as a surprise to most employers (particularly those who recall the "Fairfax Memo" issued in March, 2012, see https://www.osha.gov/as/opa/whistleblowermemo.html), the language found in the rule will likely force many employers back to the drawing board in an effort to develop new policies intended to enhance workplace safety without incurring the wrath of OSHA. In the meantime, employers would be well advised to avoid using an incentive program to "take adverse action, including denying a benefit, because an employee reports a work-related injury or illness, such as disqualifying the employee for a monetary bonus or any other action that would discourage or deter a reasonable employee from reporting the work related injury or illness." One would assume that this could encompass the month-end pizza party promised to employees if there are no recordable injuries and then abruptly canceled because an employee reports an injury.

In contrast, OSHA instructs that if "an incentive program makes a reward contingent upon, for example, whether employees correctly follow legitimate safety rules rather than whether they reported any injuries or illnesses, the program would not violate this provision." The rule thus favors positive reinforcement, such as paying a bonus for serving on a safety committee or submitting a safety suggestion adopted by the company, at the same time that it prohibits the imposition of consequences for engaging in protected activities such as reporting an illness or injury.

What Should You Do Now?

• Consider modifying your drug and alcohol testing policies to allow for discretion on obvious cases in which drug use or testing are clearly unrelated to an employee's injuries and revisit the reasonableness of your drug testing procedures with your employment attorney. Be mindful, however, that with discretion comes the potential for inconsistent application of the policies and follow-on disparate treatment claims.
• Examine your safety incentive and disincentive policies and practices with a critical eye, asking whether the policies and/or practices could be perceived as deterring or discouraging employees from reporting an injury or illness. Certain management bonus plans may similarly be viewed as incentivizing managers to discriminate against employees who report illnesses and injuries if the effect of doing so negatively impacts the manager's bonus eligibility (i.e., where the bonus is tied to the OSHA recordable rates). If the potential for either conclusion exists, consider discontinuing or revising those policies and/or practices.
• Begin preparations to switch from paper-based recordkeeping methods to an electronic system compatible with OSHA's data submission portal.
• Train the individuals responsible for injury and illness recordkeeping and reporting so they fully understand the new rule.

If you have any questions regarding the topics discussed in this bulletin, please contact Aaron R. Gelb at +1 (312) 609 7844, J. Kevin Hennessy at +1 (312) 609 7868, Thomas H. Petrides at +1 (424) 204 7756 or your Vedder Price attorney with whom you have worked.