Seeking to improve the safety of workplaces across the United States, the Occupational Safety and Health Administration (OSHA) published a final rule on May 12, 2016. The rule enforces new record-keeping requirements for employers, which should improve the tracking of employee injuries and illnesses. Below we will discuss in further detail what the new OSHA rule requires, how it aims to benefit workers, and how it will affect companies’ drug testing policies.
The New OSHA Rule
In 2013, OSHA first proposed a rule to improve the tracking and reporting of workplace injuries and illnesses. They recommended using an electronic submission process in order to collect and organize establishment-specific injury and illness data. In January 2014, OSHA held a public forum to elicit feedback on the rule. These comments were taken into consideration and are now being incorporated into OSHA’s final rule.
The new rule will take effect January 1, 2017, with the electronic submission site going live in February. In addition, after a second delay announced on October 18, OSHA will begin enforcement of its anti-retaliation provisions on December 1, 2016 (source).
Requirements of the Final Rule
Essentially, the final rule requires employers in certain industries to electronically submit all OSHA injury and illness data. OSHA will provide a secure website for this purpose. Current OSHA regulations require employers to keep this data; however, the new rule requires the data be sent to OSHA. In addition, employers must inform their employees they have the right to report work-related injuries and illnesses without risk of retaliation. The rule also clarifies employers must ensure their policies and procedures are “reasonable” and don’t discourage employees from reporting these accidents. While employers may use incentive programs, these programs cannot discourage employees from reporting illnesses and injuries.
To view the final rule in its entirety, please check out the published document on the website of the Federal Register.
Goals of the Final Rule
The final rule revises a previous regulation: Recording and Reporting Occupational Injuries and Illnesses. By electronically collecting and analyzing employers’ data on workplace injuries and illnesses, OSHA hopes to identify, target, and remove workplace hazards to prevent future injuries and illnesses. Not only will this save employees’ lives and protect their health, but it will also lower employer’s’ bottom lines. Plus, it will encourage employees to step forward with reports of injuries and illnesses instead of keeping silent because they fear their employer will respond with anger or disapproval.
OSHA plans to publish the data online at osha.gov in a timely manner. The data will be available for public use, so people can search through and download it. To protect the privacy of employees, the data will not include any identifying information. However, since a company’s investors, customers, job applicants, and the public at large will be able to view the injury and illness data submitted to OSHA, most companies will pay greater attention to their data. By publishing the data online, OSHA hopes to encourage employers to create safe, secure workplaces for all employees. After all, most people feel more motivated to change their behavior when facing public opinion.
As Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, said, “Our new rule will ‘nudge’ employers to prevent work injuries to show investors, job seekers, customers, and the public they operate safe and well-managed facilities. Access to injury data will also help OSHA better target compliance assistance and enforcement resources, and enable ‘big data’ researchers to apply their skills to making workplaces safer” (source).
How the New OSHA Rule Affects Drug Testing
Under the new OSHA rule, employers may still legally drug test employees, but they may not use drug testing as retaliation against employees who report injuries or illnesses. In addition, they must implement a “reasonable procedure” for the reporting of workplace injuries. Employers who utilize post-accident drug testing in an unreasonable way will face penalties.
Post-Accident Drug Testing
Although the new OSHA rule does not specifically address mandatory post-accident drug testing, commentary from OSHA accompanying the rule states this form of testing could deter employees from reporting, as they may perceive it as “an invasion of privacy” (source). In addition, OSHA states if the accident was likely not caused by employee drug use, or if the testing method cannot identify impairment (as opposed to recent drug use), it may act as a deterrent.
Thus, employers must limit post-accident drug testing to situations in which (1) employee drug use very likely caused the injury or illness at hand and (2) a drug test can accurately identify impairment caused by drug use. Of course, both of these criteria can be difficult to achieve, with the latter proving especially tough where drugs (as opposed to alcohol) are concerned. After all, most drug tests only measure recent drug use, not impairment.
To this end, if your company employs a “blanket” post-accident drug testing policy, we recommend you review your policy. Instead of an indiscriminate approach, you may need to implement post-accident testing on a case-by-case basis or replace it with a “reasonable suspicion” method. If you refuse to give up your policy, you may face penalties.
Federal and State Drug Testing
If an employer is required to drug test employees under a federal or state law or regulation (such as the Department of Transportation), they are not violating OSHA’s final rule because OSHA would not consider the testing vengeful. So even though the urine drug tests required by the DOT do not measure impairment (only drug and alcohol use), employers may continue to use them to comply with federal regulations.
If you’re an employer, we encourage you to use the information OSHA publishes to gauge your workplace’s safety performance. How do you compare with similar employers in your industry? Could you learn anything from those employers to improve your own workplace’s safety performance? What goals do you have for the future?
By drug testing employees, you can reduce the costs of substance abuse that result from decreased productivity, higher workers’ compensation claims, increased health care costs, legal liabilities, and more. However, drug testing isn’t just about the bottom line; it also promotes a healthy and safe work culture. In reducing the amount of substance abuse amongst employees, you can improve morale, decrease the number of injuries and accidents at work, and (in some industries) prevent fatalities. For more information on the effects of substance abuse in the workplace, please review this previous blog post.
If you’re looking to implement a drug-free workplace program through drug and alcohol testing, contact Tomo Drug Testing. Based in Springfield, St. Louis, and Kansas City, Missouri, and Indianapolis, Indiana, we offer customized solutions to make drug testing simple, and our nationwide network of clinics and providers allows Tomo Drug Testing to be available anytime, anywhere. For a free needs analysis, give us a call today at 1-888-379-7697 or contact us online. We would be happy to help!