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UPDATE: New OSHA Rule Impacting Accident Reporting and Drug Testing Will Take Effect December 1, 2016
On November 28, 2016 the U.S. District Court for the Northern District of Texas issued a ruling that denied an initial challenge filed by numerous business groups seeking to invalidate OSHA’s new accident reporting and drug testing rules. The case will continue to be litigated and the Court may ultimately rule in favor of the business groups. However, unless and until such a ruling is issued, effective December 1, 2016, OSHA’s work-related reporting procedures and the anti-retaliation provisions will become effective.Please review our articles published on July 25, 2016 and October 24, 2016 to familiarize yourselves with the new rules. To quickly summarize:
- Accident reporting procedures must be reasonable and not unduly burdensome. This has been explained by OSHA as allowing for reporting of work-related injuries and illnesses within a reasonable timeframe and manner after the employee has realized that he or she has suffered a recordable work-related injury or illness. It is considered unreasonable to discipline an employee for failing to report “immediately” when the employee is incapacitated due to the injury or illness;
- Unless an employer is governed by state or federal law mandating otherwise, OSHA prohibits drug testing employees for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so. Thus, drug testing under DOT regulations, for instance, remains unaffected. However, if an employer is enrolled in Ohio’s Drug Free Safety Program, be aware that it dictates post-accident testing of anyone who may have caused or contributed to an accident following an accident investigation, which determines, among other items, whether testing is appropriate; and
- Employee incentive programs are prohibited if they take adverse action against employees simply because a work-related incident is reported.