Ever since the Occupational Safety and Health Administration (OSHA) released new reporting and recordkeeping rules, employers have been struggling to determine what they actually mean for their workplaces. Whether it is the various reporting requirements or the multiple effective dates, OSHA’s new rules are resulting in confusion and alarm among employers who seek to simply understand how the rules affect their everyday policies and procedures.
In a recent XpertHR webinar, Ed Foulke, Jr., former head of OSHA and current co-chair of the Workplace Safety and Catastrophe Management Practice Group of Fisher Phillips, took an in-depth look at OSHA’s new reporting rules and discussed what an employer should do in order to stay compliant.
While a good deal of attention has been focused on the new electronic filing requirements, Foulke suggested that the “hoopla” over these new requirements is overshadowing more important aspects of the changes. “When [the electronic filing requirements] came out, that’s all everyone was talking about. It’s all this other stuff that’s the really big deal,” said Foulke. Cautioning that employers have been focusing on the “wrong thing,” Foulke set out three new requirements that employers must not ignore.
1. Reasonable Reporting Procedures
Under the new rules, an employer must have an employee reporting procedure that is reasonable and that does not discourage employees from reporting workplace injuries and illnesses. According to Foulke, OSHA would most likely determine a reporting procedure is compliant if it calls for an employee to report an injury or illness as soon as reasonably possible but no later than the end of the shift or within eight hours.
During the webinar, Foulke polled attendees on whether their companies required employees to immediately report workplace injuries and illnesses. Relieved that only 3% of the respondents had such procedures, Foulke said immediate reporting policies would most likely violate the new reasonableness standard. As he explained, such a policy may discourage employees from reporting because they may fear employer discipline if they do not immediately file a report.
2. Drug Testing
While some of the new requirements are expressly set forth in the regulations, Foulke explained that employers must also be cautious of some of the implications “hidden” in the preamble to the rules. For example, if an employer requires an employee to undergo a drug test because he or she was injured on the job, OSHA may find that such a policy will discourage employee reporting.
Although 56% of the webinar respondents said their companies did require drug testing in those circumstances, Foulke warned them that such a policy will not meet the new OSHA standard. However, some industries covered by certain agencies, such as the Department of Transportation, are required to conduct such testing and are therefore covered under OSHA’s safe harbor.
3. Retaliation and Safety Incentive Programs
During the webinar, Foulke repeatedly cautioned employers about safety incentive programs that reward employees who do not report a work-related injury or illness for a predetermined period of time. As Foulke explained, such programs can be found to violate OSHA’s new anti-retaliation rules for penalizing employees who come forward to report an injury.
For instance, if an employer has a program that awards an employee with a $100 gift card for not reporting an injury during the previous year and the employer does not award Sam a gift card because he reported an injury, Foulke believes that OSHA may find the employer retaliated against Sam for having made a report. Such a policy, Foulke believes, will be seen as discouraging reporting, not to mention being retaliatory.
OSHA has delayed enforcement until November 1st for the new rules affecting employer reporting policies, drug testing and incentive programs. However, Foulke cautions that employers should begin reviewing and updating their policies now.
For more insights from Foulke, such as when an employer should report a hospitalization or how proper recordkeeping can improve a safety and health management program, listen to XpertHR’s latest webinar.