The U.S. Occupational Safety and Health Administration (OSHA) recently issued a final rule that becomes effective January 1, 2017 requiring healthcare industry employers to electronically submit to OSHA injury and illness data from their OSHA logs. This information will then become publicly available on the OSHA website.
As a corollary, and “to ensure the completeness and accuracy of injury and illness data,” the final rule also:
- Creates an explicit requirement that employees must be informed of their right to report work-related injuries and illnesses free from retaliation;
- Specifically requires that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and
- Explicitly prohibits retaliation against employees for reporting work-related injuries or illnesses.
The requirement to report data applies to: (1) work locations with 250 or more employees, and (2) work locations with 20 to 249 employees in specific “high-risk industries” identified in the rule. The rule includes several types of healthcare industries in its definition of high-risk industries. Specific healthcare industries that must comply with this rule if they have 20 or more employees at a particular work location are:
- Ambulatory healthcare services;
- General medical and surgical hospitals;
- Psychiatric and substance abuse hospitals;
- Specialty (except psychiatric and substance abuse) hospitals;
- Nursing care facilities;
- Residential mental retardation, mental health, and substance abuse facilities;
- Community care facilities for the elderly; and
- Other residential care facilities.
Businesses with 250 or more employees at a work location in industries covered by the new recordkeeping regulation must submit information from their 2016 Form 300A by July 1, 2017. These employers will also be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Starting in 2019, the information must be submitted by March 2 each year. Businesses with 20-249 employees in high-risk industries, including those healthcare industries mentioned above, must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Starting in 2019, the information must be submitted by March 2 each year.
OSHA will make the injury and illness data public. After removing any Personally Identifiable Information that could be used to identify individual employees, OSHA will post the data on its website, and anyone will be able to download it. Employers in the above-referenced high-risk industries (and those with 250 or more employees) should begin planning now to ensure compliance with the January 1, 2017 reporting deadlines.
The new rule also emphasizes that employees who report workplace related injuries and illnesses may not be discriminated against or retaliated against because they have reported such injuries or illnesses. It provides OSHA with the authority to cite an employer for retaliation even in the absence of any employee complaint. The commentary to the rule says:
- Employers must have a reasonable procedure for employees to report work-related injuries and illnesses.
- Employers’ reporting procedures cannot deter or discourage reasonable employees from accurately reporting a workplace injury or illness.
- Blanket or automatic post-accident testing policies are prohibited and will be viewed as taking an adverse action against, retaliating against, or discouraging employees from reporting accidents.
- Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by a reporting employee was a contributing factor to the reported injury or illness in order for an employer to require testing, and, even then, the testing should be limited to only the employee who caused the accident rather than everyone involved.
Although the new rule does not prohibit all post-accident/post-injury drug testing policies, OSHA’s position is that the circumstances of some accidents make it unlikely that drug use was a contributing factor, and therefore testing employees in these situations would be viewed as retaliation. OSHA provides these examples of circumstances where required drug testing would be suspect:
- After an employee reports a bee sting;
- When an employee has a repetitive strain injury;
- After an injury caused by a lack of machine guarding; or
- When a machine or tool malfunctions.
The rule acknowledges many employers implement post-accident/post-injury drug testing policies because they are located in states that offer workers’ compensation premium reductions for enacting Drug Free Workplace Policies. Compliance with these workers’ compensation programs or other state or federal laws or regulations requiring post-accident/post-injury or reasonable suspicion testing are still permitted.
Employers must also specifically inform employees: (i) they have the right to report work-related injuries and illnesses; and (ii) the employer is prohibited from retaliating against employees for reporting work-related injuries or illnesses. Employers also must establish a reporting procedure that does not deter or discourage an employee from reporting work-related injuries and illnesses. These posting and reporting requirements are effective as of November 1, 2016.
In light of OSHA’s new rule, employers in the health care industry should review drug testing policies as well as accident/injury reporting policies to ensure they do not violate OSHA’s new rules.