How OSHA’s new post-accident reporting rule (postponed) effects your company
Written by Lucas Kibby, CleanFleet
OSHA’s new post-accident reporting rule can be seen as discouraging post-accident drug and alcohol testing, which OSHA believes can deter injury reporting.
If OSHA believes an employer’s drug testing policy deters injury reporting, the penalties can be quite steep, warns the law firm of Littler Mendelson. Those penalties will increase substantially in November when they rise to as much as $12,471 per violation and as much as $124,712 if OSHA finds the employer violations are “willful.”
According to Dale Deitchler, a shareholder at Littler Mendelson, the employment law firm, the new rule increases an employer’s obligation to ensure that employees report work-related injuries and illnesses. Specifically, effective 90 days after publication of the rule, recently postponed to November 1 (so OSHA can develop new education materials for employers), employers must establish “a reasonable procedure” for employees to report work-related injuries and illnesses promptly and accurately.
“Under this new reporting standard, employer policies that request or require post-accident drug or alcohol testing will now face scrutiny by OSHA because, the agency claims, post-incident testing deters injury reporting,” Deitchler explains.
OSHA does say that an employer that conducts drug testing to comply with the requirements of a federal or state law or regulation will not be considered in violation of the rule, because its motive in conducting testing is not retaliatory.
“Employers who must conduct post-accident testing – pursuant to U.S. Department of Transportation regulations, for example – should continue to do so, despite the fact that the DOT’s testing program mandates the use of urine drug tests, which do not measure impairment,” he says.
Avoiding new fines
To avoid the penalties, Deitchler says, employers should focus on overbroad post-accident policy language and consider testing that is more narrowly tailored to at least show recent illegal drug use (for example, oral fluids testing).
In fact across-the-board post-accident testing – testing in connection with any accident or injury – should be eliminated.
“This would take out broad-based testing where circumstances lack any sudden or unexpected events component such as testing when there is a repetitive use injury,” he explains. At a minimum, policies should be tightened to tie post-accident testing to situations in which an employee caused or contributed to the accident and property damage is a level estimated by the employer (for example, $1,000).
While this can get a bit tricky, Deitchler explains that it’s important to note that the limitations on post-accident workplace drug testing are not stated in the new rule itself, but arise out of the commentary to the rule. In other words, he says, there has been no “regulation” change for post-accident testing.
But taking OSHA’s commentary at face value as to how it will enforce the new rule, the new rule changes would prohibit employer practices that mandate automatic testing in connection with any accident – testing merely because of a first report of injury or other situations that have no likely connection to illegal drug or alcohol use. That would include repetitive use injuries such as carpal tunnel syndrome injuries without any tie to a defining event, such as back strains or muscle spasms.
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