Effective January 1, 2017, the Occupational Safety and Health Administration (OSHA) will begin enforcing its new rule on electronic reporting of workplace injuries and illnesses. Although the final rule was issued on May 12, 2016, OSHA delayed enforcement until January 1, 2017.

The section of the new rule that has received the most reaction from employers enhances an employer's obligation to facilitate employee reports of work-related injuries and illnesses, and requires that employers establish a "reasonable procedure" for employees to make prompt and accurate reports of work-related injuries and illnesses. (29 C.F.R. § 1904.35(b)(1)(i)). The new rule also incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses, and clarifies the existing implicit requirement that an employer's policies must not deter or discourage reasonable employees from accurately making such reports. This section became effective August 10, 2016, but enforcement was delayed until November 1, 2016 to provide the opportunity for OSHA to issue guidance. A memo was issued to regional administrators on October 19, 2016, and new online guidance provides additional insight into how OSHA will enforce these new provisions.

Given the impending changes, employers are advised to review internal policies and procedures to ensure compliance with the new rule. Notably, employers should anticipate increased requests for copies of company policies as well as additional information related to reported injuries to ensure compliance with the new provisions. Although not expressly identified in the changes to regulatory language, OSHA guidance highlights three areas of anticipated heightened scrutiny and additional enforcement action.

Company Drug Testing Policies

OSHA commentary accompanying the rule suggests such policies will be scrutinized because post-accident drug testing has the potential to discourage injury reporting, may not demonstrate current impairment, and the reported illness or injury may not be one that could be caused by drug use. Existing drug testing policies should be reviewed and revised to ensure compliance with the new rule and corresponding guidance. Employers should anticipate that OSHA will make review of drug testing policies standard in any future inspections.

Employers should consider the following factors in the course of their policy review:

• Eliminate blanket post-accident testing: OSHA commentary indicates that a blanket policy requiring drug or alcohol testing in every workplace injury or accident situation will violate OSHA's requirements for a reasonable reporting procedure. Employers should be prepared to defend existing drug testing policies based on worker's compensation programs, safety considerations, other legal requirements, or other bases that establish the requirement of drug tests for all employees involved in accidents requiring medical attention does not deter reporting and does not constitute retaliation.
• Establish guidelines for testing: OSHA has given little guidance on how to determine if drug use "is likely to have contributed to the incident." Employers should implement policies and procedures whereby management conducts and documents an individualized assessment of the particular facts and circumstances of each incident to determine if there is a reasonable possibility that drugs or alcohol were a contributing factor, and to avoid testing where the individualized assessment excludes possible intoxication as a cause. Depending on the situation, acceptable factors to consider include (1) the nature of the accident; (2) whether such an accident is the type that may be caused by intoxication; (3) the employee's role in the accident; and (4) any observations of the employee that may suggest the employee was impaired due to drug or alcohol use. Supervisors should receive training regarding the assessment process, including factors for consideration and steps for documenting their analysis at the time it is made, before they are asked to decide whether to order a drug/alcohol test.
• Confirm insurance requirements: Some insurance policies may require drug testing in connection with certain types of workplace accidents. If you have such a policy, it should be reconciled with the new OSHA guidance.
• Confirm procedures used by drug testing facilities: As noted above, OSHA disapproves of drug testing that detects use at some unspecified time in the past but does not detect impairment at the time of the accident. Employers should confirm with its drug testing vendor that the types of tests being utilized, particularly in the case of post-accident and reasonable suspicion testing, conform to the OSHA requirements.
• Avoid post-accident or injury testing if unnecessary: The OSHA guidance does not require employers to conduct drug tests. If the employee's underlying conduct was severe enough to support a termination without a drug test, employers should consider bypassing its right to a post-accident or injury drug test and consider terminating the employee for the underlying conduct (consistent with other applicable law).

Safety Incentive Programs

OSHA's guidance also addresses company safety incentive programs. While the new rule does not prohibit incentive programs, such programs must not penalize workers for reporting work-related injuries or illness by denying a benefit as part of the incentive program. OSHA believes this type of program may constitute retaliatory action against employees for exercising their right to report an injury or illness.

Existing incentive programs should be reviewed and revised to ensure compliance with the new rule and corresponding guidance. Employers should anticipate that OSHA will make a review of incentive programs standard in any future inspections.

Incentive programs should focus on accident avoidance, and reward employees for proactively identifying hazards and observing safety rules. Incentive points could include:

• Completion of safety and health training
• Reporting and responding to hazards and close calls/near misses
• Identification of hazards during safety walkthroughs or inspections
• Conformance to planned preventive maintenance schedules
• Raffles or other incentives compliance with legitimate workplace safety rules (e.g., no discipline issued or observed violations of safety rules)

Programs that withhold incentives because of reported injury or illness or that are tied to the number or amount of reported injuries will be viewed by OSHA as retaliatory in nature and designed to discourage employees from reporting workplace injury or illness. In its most recent guidance, OSHA provides multiple incentive program scenarios for employers to consider.

Disciplinary Programs

Employers are not prohibited from disciplining employees who violate legitimate safety rules or reasonable reporting procedures. However, employers are prohibited from automatically disciplining employees simply because they report a work-related injury or illness without regard to the circumstances of the injury or illness, or under the pretext that the employee violated a work rule while the real reason for the discipline was the injury or illness report.

In light of this increased focus employers should ensure:

• Discipline for work-rule violations is consistently applied: Employers should ensure both supervisors and human resources representatives consistently apply work rules to all employees regardless of whether they reported a work injury or illness. A legitimate workplace safety program should treat all workers who violate rules in an equivalent manner, regardless of whether or not the violation resulted in the worker reporting an injury or illness. Given the challenges associated with proving a discriminatory intent, employers should anticipate requests for information regarding employees disciplined for violating a work rule and report a work injury or illness, as well as employees who violated the same rule in the same way and did not report an injury or illness. OSHA will use such comparator information to demonstrate inconsistent application of the company disciplinary policy. Disproportionate enforcement against reporting employees suggests the real reason for the discipline was the reported injury, not the rule violation.
• They have a legitimate business reason for disciplining an employee who fails to report injury or illness: OSHA will also scrutinize discipline issued to employees who fail to report a work-related injury or illness in the manner prescribed by company policy, particularly where the employer does not give consideration to the circumstances leading to the employee's failure to report. Employers should be prepared to demonstrate they had a legitimate business reason for the discipline unrelated to the reported injury or illness.