1. The New OSHA Recordkeeping Rule and its Effects on Safety Incentive Practices and Post Incident Drug Testing. Sept 20, :30-3:00 pm Seattle, WA. Rick Gleason, CSP, CIH (206)

2. Keep Everyone Safe!!

4. The new rule, which takes effect Jan
The new rule, which takes effect Jan. 1, 2017, requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms. The information will be on OSHA’s Public website just like inspection data

5. "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.“ Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health

6. Establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit information from their 2016 Form 300A by July 1, These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

7. High Risk Industries 20-249 employers must submit 300A by July 1, 2017

8. Question How does recordkeeping relate to Prohibiting Mandatory Drug Testing and Employee Recognition Programs?

9. The revised final rule (which became effective on Jan. 1, 2017):
Update to Requirement
The revised final rule (which became effective on Jan. 1, 2017):
Requires employers in certain industries to electronically submit to OSHA injury and illness data employers already keep under existing OSHA regulations. The frequency and content of these submissions is set out in the final rule and is dependent on the size and industry of the employer.

10. Update to Requirement
Amends OSHA's recordkeeping regulation to update requirements on how employers inform employees to report work-related injuries and illnesses to their employer.
Requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation

11. Update to Requirement
Clarifies 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
Incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.

12. Buried in OSHA’s impending final rule on electronic reporting of workplace injuries and illnesses is this little nugget. OSHA believes that you might violate the law if you require an employee to take a post-accident drug test. According to OSHA, you might violate the law if you automatically drug test any employee after an on-the-job accident.

13. While this prohibition doesn’t appear in the the actual text of the final rule, it does prominently appear in OSHA’s interpretation of the provision which prohibits employers from retaliating against employees who reporting a work-related injury or illness:

14. "OSHA believes the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.… [T]his final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. 

15. To strike the appropriate balance here, drug testing policies 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.… 

16. Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing."

17. If an employer conducts drug testing to comply with the requirements of a state or federal law or regulation, the employer’s motive would not be retaliatory and the final rule would not prohibit such testing. This is doubly true because Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers’ compensation laws.

18.  For example, it would likely not be reasonable to drug-test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction. Such a policy is likely only to deter reporting without contributing to the employer's understanding of why the injury occurred, or in any other way contributing to workplace safety.

19. OSHA: New Requirements for Employer Reporting
As part of Electronic Reporting Rule, employers must ensure that reporting procedures are reasonable and do not deter employees from reporting job-related injuries and illnesses.
Employer policies that discipline an employee for failing to repot an injury on a timely basis may violate the rule if its applied to workers whose injuries develop gradually over time.
Employers must inform employees that they have a right to report work-related injuries and illnesses free from retaliation.

20. OSHA: Anti-Retaliation Provision of Employer Reporting
Employer may not discharge or discriminate against employee who for reporting a work-related injury or illness.
Lawsuit filed 7/8/16 seeking declaratory judgment that the new rule is unlawful to the extent it prohibits or otherwise limits incident-based employee safety incentive programs and/or routine mandatory post-accident drug testing programs.
OSHA delayed effective date of anti-retaliation provisions from 8/10/16 to 11/1/16

21. OSHA: Post-Incident Drug Testing
In the Electronic Reporting Rule, OSHA commented that blanket drug testing policies may be retaliation.
They should be limited to situations in which employee drug use is likely to have contributed to the incident and for which drug testing can accurately identify the impairment caused by drug use.

22. OSHA: Safety Incentive Programs
In the Electronic Reporting Rule, OSHA has indicated that certain incentive programs that reward employees for remaining injury-free at work can be retaliatory and deter reporting of workplace injuries and illnesses.
OSHA states that it is a violation of the anti-retaliation provision for an employer to sue an incentive program to take adverse action, including denying a benefit because an employee reports a work-related injury or illness.
OSHA recommends adopting incentives for employees who follow legitimate safety rules, identify hazards, participate on safety committees or other similar activities.

23. Accident Reporting Rule By Melissa Daniels Law360, Los Angeles (July 11, 2016, 11:50 PM EDT) – The National Association of Manufacturers, Associated Builders and Contractors Inc. and similar groups sued the Occupational Safety and Health Administration in Texas federal court on Friday over the agency's workplace injury and illness reporting rule, saying the measure contains anti-retaliation provisions that go too far in limiting post-accident drug-testing.  The suit contends the rule’s treatment of post-incident or post-accident drug and alcohol screenings limits an employer's ability to investigate accidents. OSHA’s rules require employers to publicly report all incidents and bars them from retaliating against employees who report an accident. 

24. “There is no reliable evidence to support OSHA’s assertion that any category of safety incentive programs or post-accident drug testing programs lead to materially inaccurate reporting or underreporting of workplace injuries and illnesses,” the complaint says. “OSHA failed to consider how an OSHA rule prohibiting or otherwise limiting these longstanding types of safety programs would impact workplace safety and health.”

25. Medical Marijuana laws
25 States and DC have medical marijuana laws:
(site has list of states that have adopted medical marijuana laws)
States passing laws in 2016: Ohio and Pennsylvania (Illinois – 11/2015)
Marijuana is still an illegal controlled substance under federal law.
More than 50% of the laws prohibit marijuana use at work and/or provide that employers need not accommodate marijuana use at work.
Only some of the laws prohibit employment discrimination against employees who use medical marijuana (Arizona, Connecticut, Delaware, District of Columbia, Illinois, Maine, Nevada, New York, Minnesota, Pennsylvania, and Rhode Island).
Shepherd v. Kohl’s Department Stores,Inc. (E. D. Ca. August 2, 2016) (Employee who was medical marijuana cardholder tested positive for marijuana after work place accident – court granted summary judgment to employer on disability/failure to accommodate claims but not on breach of implied contract claims where employee handbook stated that employees in CA would not be discriminated against for valid medical use of marijuana)

26. Questions