OSHA can begin enforcing its rule restricting safety incentives and drug testing programs, a federal judge decided Nov. 28 ( TEXO ABC/AGC v. Perez , N.D. Tex., No. 16-1998, 11/28/16 ).
OSHA has succeeded in defeating the temporary injunction on its new electronic recordkeeping rule that also addresses injury reporting and drug testing in the workplace. The November 28th ruling by a judge in the Northern district of Texas allows OSHA to begin the enforcement as of December 1, 2016. The final rule becomes effective January 1, 2017.
What does this mean for Employers?
All establishments with 250 or more employees in industries covered by the recordkeeping regulation must electronically submit to OSHA injury and illness information from OSHA Forms 300, 300A, and 301. Establishments with 20-249 employees in certain industries must electronically submit information from OSHA Form 300A only.
What is an Establishment?
The electronic reporting requirements are based on the size of the establishment, not the firm. The OSHA injury and illness records are maintained at the establishment level. An establishment is defined as a single physical location where business is conducted or where services or industrial operations are performed. A firm may be comprised of one or more establishments. To determine if you need to provide OSHA with the required data for an establishment, you need to determine the establishment's peak employment during the last calendar year. Each individual employed in the establishment at any time during the calendar year counts as one employee, including full-time, part-time, seasonal, and temporary workers.
If a company has over 250 employees total but not more than 250 employees at a single establishment and is not on the list of “certain industries”, than they do not have to electronically report.
The final rule takes effect Jan. 1, 2017, and reporting requirements will be phased in over two years, as follows:
Establishments with 250 or more employees must begin submitting information from Form 300A by July 1, 2017, and must submit information from all forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.
Establishments with 20-249 employees in certain high-risk industries must begin submitting information from Form 300A by July 1, 2017, and again by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.
How do I submit the information?
OSHA will provide a secure website for the electronic submission of information. The website will include web forms for direct data entry and instructions for other means of submission (e.g. file uploads).
For establishments with 20-249 employees that are required to report, OSHA estimates that it will take a typical employer about 10 minutes to create an account and another 10 minutes to enter the required information from the Summary of Work-Related Injuries and Illnesses (Form 300A).
For establishments with 250 or more employees, OSHA estimates that it will take a typical employer about 10 minutes to create an account, 10 minutes to enter the required information from the Summary of Work-Related Injuries and Illnesses (Form 300A), and 12 minutes to enter the required information for each injury or illness recorded on their Log and Injury and Illness Incident Report forms (Forms 300 and 301).
Drug Testing Program:
OSHA has also decided to use oversight to govern the drug testing programs of employers in a limited sense. The rule does not prohibit drug testing of employees. It only prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses. 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 this rule would not prohibit such testing.
OSHA already prohibits any person from discharging or otherwise discriminating against an employee who reports a fatality, injury, or illness. However, OSHA may not act under that section unless an employee files a complaint with OSHA within 30 days of the retaliation. In contrast, under the final rule, OSHA will be able to cite an employer for retaliation even if the employee did not file a complaint, or if the employer has a program that deters or discourages reporting through the threat of retaliation. Often the point of retaliating against an employee who reports a hazard is to intimidate them from asserting their rights. This new authority is important because it gives OSHA the ability to protect workers who have been subject to retaliation, even when they cannot speak up for themselves. The rule gives OSHA an important new tool in encouraging employers to maintain accurate and complete injury records.
This rule does not prohibit incentive programs. However, employers must not create incentive programs that deter or discourage an employee from reporting an injury or illness. Incentive programs should encourage safe work practices and promote worker participation in safety-related activities.