09/01/2016 | Dee Yingst
A few months ago we talked about a regulatory body whose rules apply more broadly than many employers think1; this month we're going to talk about another one of those regulatory bodies: OSHA.
HOLD ON….WAIT JUST A MINUTE, you say. My company doesn't work with chemicals, or do construction or oil drilling so OSHA doesn't apply to us, right? Even if we did that stuff, I'm in HR so I don't have to worry about OSHA, right? That's just for the safety department, right?
Wrong….Wrong….and oh-by-the-way…. Wrong.
OSHA certainly isn't the biggest piece of HR's knowledge pie, but it's still an important one. HR knowing about OSHA is kind of like a chef knowing about spices – a great chef knows that sometimes the smallest ingredients can make the difference between good and great.
Most HR people have a general idea of who OSHA is – they're the safety people. Well, technically they're the Occupational Safety and Health Administration. These fine guys and gals are the keepers of the Occupational Safety and Health Act. (For purposes of our discussion, we're going to refer to both the Act and the organization as OSHA. It's just easier that way.) Many people make the mistake of thinking that OSHA's rules really only apply in big industrial settings like construction or manufacturing. Granted, when we hear of big accidents where OSHA is on the scene, it is often in industrial settings. But don't make the mistake of thinking that means OSHA isn't important to you.
If you ask OSHA what kinds of employers they cover, here's what they'll tell you:
The OSH Act covers most private sector employers and their workers, in addition to some public sector employers and workers in the 50 states and certain territories and jurisdictions under federal authority. 2
Further, employers are subject to OSHA's General Duty Clause:
Employers are required to provide their employees with a place of employment that "is free from recognizable hazards that are causing or likely to cause death or serious harm to employees." 3
In a nutshell, it applies to you. There are also recordkeeping and posting requirements that are across all industries as well (see footnote 3 at the end of this post). Today, we're going to be discussing recent guidance from OSHA that is important to know as you review your employee handbook.
OSHA is very concerned about work rules that they believe discourage workers from reporting work-related accidents or illnesses. What kinds of rules would be discouraging to workers? Things like rules for automatic drug testing for workers involved in any workplace accident as well as rules that give rewards for zero incidents/accidents. Whether it's intentional or not, these types of rules can have a chilling effect on an employee's decision to report an accident or injury. This is precisely what OSHA wants to avoid. To be clear, these aren't new rules. What OSHA has done is released additional guidance that "…clarifies the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting." This clarification is included with the new rules around electronic reporting of illness and injuries. If you're not familiar with those rules you'll want to check them out.4
It is OSHA's position that automatic post-injury drug testing policies deter proper reporting. This doesn't mean you can't drug test someone post-accident; just that you must strike the proper balance when choosing to test. OSHA gives examples of unreasonable testing for things like repetitive strain injuries, bee stings, machine malfunctions, etc. Testing in these situations, OSHA believes, adds nothing to the employer's understanding of why the incident occurred and contributes nothing to overall workplace safety. It is important that testing be done only when impairment could reasonably have contributed to the cause of the accident or injury. So you'll need to be able to articulate why you have chosen to do a drug test on a worker involved in an accident, beyond simply the fact that the accident happened. (OSHA will not object to drug testing done to satisfy the requirements of other laws).
The other deterrence OSHA sees to reporting is zero accident incentive plans. While these programs have noble intentions, they can discourage employees from reporting work-related illnesses and injuries. Citing multiple studies, OSHA's position is that offering employees incentives to remain "accident free" does not create zero accidents but instead creates an environment in which the injured worker simply does not report the incident in order to not be excluded from the incentive payment, either as their own decision or as a result of peer pressure. Instead of creating a safer environment, OSHA asserts these programs create just the opposite due to under-reporting of unsafe conditions. OSHA is not opposed to all incentive programs, just those that could be construed as discouraging reporting. For instance, an incentive program that rewards employees for following safety protocols would be seen favorably by OSHA.
So what to do next? Dust off those employee handbooks and check your safety and drug policies and make sure they don't have blanket testing requirements for post-accident. Then make sure your supervisors and HR departments understand what circumstances might warrant a test and the appropriate manner to document the reasoning if a test is ordered. Take a long, hard look at your safety incentive programs as well. Make sure your incentives reward the avoidance of accidents and injuries and not the under-reporting of them. Employees should never feel like they cannot or should not report a work related illness or injury.
If you're up for a little light reading while you're digesting this small but important slice of your HR pie, here's the pdf version of the Federal Register article for OSHA's Final Rule: Improve Tracking of Workplace Injuries and Illnesses. You'll find the points we just discussed on pages 29673 and 29674: https://www.gpo.gov/fdsys/pkg/FR-2016-05-12/pdf/2016-1443.pdf. (You can also access this information at footnote number 4 below.)
1–The April blog post discusses the NLRB and how their guidance can impact your handbook.
2–Some states have OSHA-approved state programs; if you want that more information you can find it here: https://www.osha.gov/dcsp/osp/index.html
3–Visit OSHA for more information about the General Duty Clause, recordkeeping, and other employer responsibilities at: https://www.osha.gov/as/opa/worker/employer-responsibility.html
4– You can review the recordkeeping rules on OSHA's site; you can also read the full detail included in the Federal Register article at https://www.federalregister.gov/articles/2016/05/12/2016-10443/improve-tracking-of-workplace-injuries-and-illnesses