New OSHA Regulations – Action Required by 11/1/16

July 29, 2016 – by Jim Spencer

By now, most of us are tired of hearing about new federal regulations on employers. But the regulators in Washington aren’t getting tired.  Instead, they’re picking up steam during the last months of the current administration. The Occupational Safety and Health Administration (OSHA) is joining in the fun with new regulations that will begin to be enforced on November 1, 2016.  (The effective date of the new regs is August 1, but OSHA has kindly decided to give employers time to adjust.)

Summary of New Requirements

Under the new regulations, all employers are required to:

• Establish a “reasonable procedure” for employees to report work-related injuries and illnesses promptly and accurately (a procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness);
• Inform each employee of the established procedure;
• Inform all employees that:
  • They have the right to report work-related injuries and illnesses; and
  • Employers are prohibited from discharging or in any manner discriminating against employees for making those reports.

Action to Take by November 1

By November 1, 2016, employers should do several things in response to these new requirements:

• Post the New OSHA Poster. An FAQ on the OHSA website says that one way to inform employees of their rights under the new regulations is to post the OSHA “It’s The Law” worker rights poster from April 2015 or later. The poster can be downloaded here: http://www.osha.gov/Publications/poster.html.
• Update/Establish Reporting Procedures. Most employers probably have a reporting procedure already established. (If not, it’s time to get one in place.)  Often, those procedures are included in a workers’ compensation policy. But, as with most things, what an employer deems reasonable is not necessarily reasonable to the feds. Under the new OSHA regulations, a reporting procedure cannot require employees to report work-related injuries and illnesses immediately. Why is that? Because some injuries and illnesses don’t reveal themselves for some time. Therefore, to be reasonable, the procedure needs to allow reporting within a reasonable time frame after an employee has realized that he/she suffered a work-related injury or illness. So, if your procedure requires immediate reporting of injuries/illnesses, get that changed by November 1.
• Review and Revise Drug Testing Policy. OSHA takes the position that it’s a violation of the new regulations for an employer to automatically drug test after accidents. The preamble to the regulations says that drug-testing policies “should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”  Employers should review and revise their drug-testing policies accordingly.

Electronic Reporting

In addition to the requirements listed above, it also bears noting that the new regulations require electronic reporting of OSHA Forms 300A, 300, and 301 annually for the following employers:

• Employers with at least 250 employees (“Large Employers”); and
• Employers with 20 to 249 employees that are in certain designated industries (“Designated Employers”).  (Click here for the list.)

The electronic reporting requirements are being phased in, as follows:

• Large Employers
  • July 1, 2017 – File 2016 Form 300A
  • July 1, 2018 – File all three types of 2017 Forms
• Designated Employers
  • July 1, 2017 – File 2016 Form 300A
  • July 1, 2018 – File 2017 Form 300A

Beginning March 2, 2019 (and every year thereafter), all three forms for the prior year must be filed by March 2.

For more information about the new regulations or to discuss compliance strategies, contact attorney Jim Spencer at jspencer@hinklaw.com or 316-660-6109.