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On May 11, 2016, OSHA issued a final rule requiring employers to electronically submit injury and illness data on an annual basis.  The rule also included in the preamble guidance for employers on the impact of the new anti-retaliation provisions on drug and alcohol testing and safety incentive programs in the workplace.  Various trade associations filed suit challenging various provisions in the final rule, but a preliminary injunction was denied by a court ruling on November 28, 2016.

The "anti-retaliation" provisions of the new rule went into effect on December 1, 2016.  The rule requires employers to inform employees of their right to report work-related injuries and illnesses without retaliation, and the notice requirement may be satisfied by posting the OSHA Job Safety and Health - It’s The Law worker rights poster (from April 2015 or later). 

Some of the controversial portions of the anti-retaliation provisions that are to be tested in court include a provision dealing with the circumstances under which an employer may drug test an employee who reports an injury or illness.  In evaluating whether an employer has an objectively reasonable basis for such testing, the employer is supposed to determine whether it has a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.  Employers may continue to drug test in accordance with state workers’ compensation laws or other state or federal laws.

The electronic reporting rule does not prohibit safety incentive programs in and of themselves, but OSHA takes a position that the safety incentive programs should not be applied in a way that penalizes employees for reporting injuries or illnesses.  Additional guidance is available at: https://www.osha.gov/recordkeeping/modernization_guidance.html.

Wimberly, Lawson, Steckel, Schneider & Stine

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