Final Rule to Improve Tracking of Workplace Injuries & Illness and
Impact on Post-Incident Substance Abuse Testing
OSHA, via the Final Rule to Improve Tracking of Workplace Injuries and Illnesses (read the
), continues their ongoing stance that employers create and maintain free and open systems for employees to quickly report work-related injuries / illnesses. This new rule, which amends
29 CFR 1904 Recording and Reporting Occupational Injuries and Illness
includes language pertaining to post incident testing in regards to deterring employees from reporting accidents and incidents in a timely manner. See the following for an excerpt from the new standard......"
employers 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
". Unfortunately, this statement in the new Rule has the potential to limit an employer's ability to properly test for workplace substance abuse and create exposure to violations and fines. This
authored by Kathryn Russo, Jackson - Lewis, provides additional information regarding the new Injury and Illness Recordkeeping Rule and the impact on post-incident drug testing.
In reaction to the new Rule, there are ongoing legal challenges that include one filed by The National Association of Manufacturers, Great American Insurance Co. and several other organizations in the U.S. District Court for the Northern District of Texas. The National Association of Manufactures senior vice president and general counsel, Linda Kelly stated that, "
The Department of Labor is putting a target on nearly every manufacturer in this country by moving this regulation forward. Not only does OSHA lack statutory authority to enforce this rule, but the agency has also failed to recognize the infeasibility, costs and real-world impacts of what it preposterously suggests is just a mere tweak to a major regulation. Furthermore, releasing this information will lead others to make inaccurate conclusions, will open manufacturers up to retaliation and will sacrifice employee and employer privacy.
" Please review the following Business Insurance
on the aforementioned legal challenge.
Delay in Effective Date for Enforcing Anti-Retaliation
Perhaps in reaction to the legal challenges, OSHA has delayed the effective date for enforcing anti-retaliation section of injury tracking rule. Please see the following press release from OSHA, "
OSHA is delaying enforcement of the anti-retaliation provisions in its new injury and illness tracking rule to conduct additional outreach and provide educational materials and guidance for employers. Originally scheduled to begin Aug. 10, 2016, enforcement will now begin Nov. 1, 2016. Under the rule, employers are required to inform workers of their right to report work-related injuries and illnesses without fear of retaliation; implement procedures for reporting injuries and illnesses that are reasonable and do not deter workers from reporting; and employers are prohibited from retaliating against workers for reporting injuries and illnesses".
How to Proceed?
At this point, Lyons is recommending that employers continue to conduct post-accident / injury / illness drug and alcohol testing. We believe that OSHA is going to be hard pressed to prove that post-accident testing programs, when applied correctly, discourage employees from reporting injuries / illnesses. However, you may want to consider adding language to your policy that is similar to the following: "
Post-accident testing will be decided at the discretion of senior management, as based upon all available evidence, and that minor / not-at-fault work related accident / injuries and illnesses (ex: bee sting or being rear ended in a vehicle at a stop light) may not qualify for testing".
A key to any substance abuse prevention and control policy is to be as consistent as possible, not necessarily in regards to the type of incidents or injuries that trigger a test, but consistency with the process used to determine if the injury or illness is minor and/or if employee was not at fault. If you stay consistent with detailed post-accident / incident investigation and root cause analyses you should limit exposure to OSHA enforcement, which we are assuming will not be as significant as the enforcement of standards like Fall Protection, Hazard Communication, Machine Guarding and Respiratory Protection. We highly recommend that your substance abuse prevention and control policy be reviewed by a qualified attorney.