On December 1, 2016, OSHA began enforcement of the anti-retaliation provisions of its new and controversial Reporting Rule. Beyond mere reporting, the Reporting Rule contains provisions designed to prevent employers from retaliating or discouraging employees from reporting injuries. Under these so-called anti-retaliation provisions employers must inform their employees of their right to be free of workplace retaliation. Employers can meet this requirement by posting a copy of the April 2015 or later “It’s the Law” poster available from the OSHA website. 

Under the Reporting Rule, post-accident drug testing can be a violation of the anti-retaliation provisions. OSHA believes that mandatory drug testing could discourage reporting of injuries when an employee is concerned about the detection of drug use unrelated to the accident. This does not mean that an employer may not ever test an employee for drugs after an accident. Rather the employer must have a reasonable suspicion that the employee’s drug use contributed to the accident prior to testing. Also, employers may conduct post-accident drug testing to comply with the requirements of a state or federal law or regulation.

The anti-retaliation provisions also limit the scope of employer’s safety incentive programs. OSHA is concerned that programs that provide incentives or disincentives based on employee safety could discourage injury reporting. For example, if an employer promised a pizza party if employees go a certain number of days without injury, an injured employee may not report her injury so as not to jeopardize receiving the pizza party. Going forward, incentive programs should be applied across the board, such as offering a reward for participating in safety training, reporting unsafe conditions, or serving on committees to improve workplace safety.

Additionally, rules that took effect on January 1, 2017, require certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms. Establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit information from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 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 submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.