On May 12, 2016, the Occupational Safety & Health Administration (OSHA) published a final rule regarding reporting injuries and illnesses in the workplace and protecting employees who make those reports. The new rule expands OSHA’s enforcement powers, requires employers to make disclosures to employees, and requires employers to submit information regarding injuries and illnesses to OSHA.
Certain of these requirements take effect on August 10, 2016. Chief among them is an amendment to OSHA’s recordkeeping regulation, which will:
- Require employers to inform employees of their right to report work-related injuries and illnesses free from retaliation;
- Clarify the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses “must be reasonable and not deter or discourage employees from reporting;” and
- Allow OHSA to enforce the non-retaliation provisions through the agency’s citation process (similar to citing a workplace hazard) in addition to employee’s right to file their own whistleblower claim.
Commentary to the new final rule states that while “drug [or alcohol] testing of employees may be a reasonable workplace policy in some situations,” blanket post-injury tests intrude upon employee privacy and deter proper reporting.
Under the new rule, employers must limit post-incident testing to situations where employee drug or alcohol use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use. For instance, drug tests may not be reasonable for employees who report a bee sting, repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.
Several organizations have challenged the new final rule in federal court, arguing that, among other claims, the new final rule is unlawful because it exceeds OSHA’s statutory authority provided under the OSHA Act.
At this point, however, OSHA is likely to take enforcement measures, if needed, regardless of pending lawsuits. It is therefore advisable that employers start working toward compliance.
Employers that do not comply with the new rule face serious penalties for each violation; OSHA has implemented increases that permit maximum penalties to over $12,000 per violation and over $120,000 for willful or repeat violations.
For additional information on this or any related topic, please contact Indiana labor and employment law attorney Jake Fulcher at (812) 423-3183 or jfulcher@KDDK.com, or contact any member of the KDDK Labor & Employment Law Practice Team.
NOTE: OSHA recently delayed enforcement of the anti-retaliation provisions to November 1, 2016.
About the Author
Jake Fulcher, an Indiana labor and employment law attorney, is a partner at Kahn, Dees, Donovan & Kahn, LLP, in Evansville, Indiana. Jake represents a broad base of employers, including both private and public employers located in the U.S. and abroad, in all aspects of labor and employment law. Jake devotes much of his practice to daily client counseling, developing best practices, and providing management and supervisor training on a variety of labor and employment-related issues. He also reviews and drafts employment contracts, consulting agreements, handbooks, non-compete/trade-secret agreements and severance packages.
*Article Co-Authored by Joshua R. (J.R.) Trockman, KDDK Law Clerk