Electronic Submission of Injury/Illness Records
What does the rule require?
The new rule, which would have taken effect Jan. 1, 2017, requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms. Analysis of this data will enable OSHA to use its enforcement and compliance assistance resources more efficiently. Some of the data will also be posted to the OSHA website. OSHA believes that public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public. The amount of data submitted will vary depending on the size of company and type of industry.
NOTE: OSHA is not accepting electronic submissions of injury and illness logs at this time. On May 17, 2017, OSHA announced that it will extend the July 1, 2017 deadline for electronic submission of injury and illness logs. OSHA did not state the expected extent of the delay. As to timing, the agency stated, “Currently, we do not have any additional information about the timeline for this. We will let you know as additional information, including a proposed extension date, is available. ”Updates will be posted to this webpage when they are available.
H.J.Res.83 - Disapproving the rule submitted by the Department of Labor relating to "Clarification of Employer's Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness".
Background to the “Volks” Rule
In a case involving Volks Constructors of Prairieville, LA, the Occupational Safety and Health Review Commission (OSHRC) had ruled in 2011 that OSHA can look back five years for recordkeeping violations. But now the U.S. Court of Appeals for the District of Columbia Circuit has issued a decision that cuts the period down to just six months. OSHA had fined Volks $13,300 for failing to properly record certain workplace injuries and for failing to properly maintain its injury log between January 2002 and April 2006. OSHA issued the citations in November 2006. Volks appealed the citations, because under law, “no [OSHA] citation may be issued after the expiration of six months following the occurrence of any violation.” November 2006 was at least six months after the last unrecorded injury at Volks. OSHA noted that its regulations require companies to save all injury documentation for five years from the end of the calendar year the records cover. So the agency categorized the record keeping errors as “continuing violations” that prevented the statute of limitations from expiring until the end of the five-year document retention period.
Under the Occupational Safety and Health Act regulations, employers are required to maintain a log of any workplace injuries or illnesses that occur and retain these records for five years. While OSHA inspectors have long used this information to enhance health and safety protections in America’s jobsites, the law explicitly says that employers can only be cited for record-keeping violations within a six-month time period. Yet during the waning days of the Obama administration, OSHA rewrote the law through regulatory fiat. The agency finalized the “Volks” rule, which extends the threat of penalty up to five years. According to the bill’s sponsor, “Every worker deserves safe and healthy working conditions, and bad actors who put hardworking men and women in harm’s way must be held accountable. That’s why Republicans have consistently called on OSHA to improve its enforcement efforts and collaborate with employers to address gaps in safety. Unfortunately, the Obama administration consistently doubled down on failed, punitive policies that do more to tie small businesses in red tape than protect workers. With this rule, OSHA rewrote federal law while doing nothing to improve worker health and safety.
On Monday, April 3, 2017, the President signed into law: H.J. Res. 83 which nullifies the Department of Labor's rule that was published on December 19, 2016, about employers' ongoing obligation to make and maintain records of work-related injuries and illnesses.
OSHA Says Automatic Post-Accident Drug Testing A Violation Of Law
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.
What the Final Rule Says
The final rule says that employers cannot deter proper reporting or retaliate against employees for the reporting of a workplace injury or illness. This could be as simple as verbal threats of retaliation if employees report accidents; or, it could be far more subtle, cloaked as an “incentive” for teams or departments with the least number of injuries in a given time period.
Now OSHA’s Interpretation of The Provision
Based on the evidence presented, OSHA believes that “blanket post-injury drug testing policies deter proper reporting.” That means, if you have a policy in place that automatically mandates drug testing after every accident, injury or illness, you are in violation of the law. However, you may still use your discretion and drug test an employee after an incident. But, if you do, you must have very good reason to believe that “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.”
What the American National Standards Institute (ANSI) Says
ANSI has similarly recognized the need for drug testing programs to be “carefully designed and implemented to ensure employees are not discouraged from effective participation in injury and illness reporting programs.”
What About Workers Compensation?
Some commenters were concerned about drug testing as required by worker comp, and whether this would violate OSHA’s rule.OSHA’s response was that, “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 the final rule would not prohibit such testing. This is doubly true because Section 4(b)(4) of the Act prohibits OSHA from superseding or affecting workers’ compensation laws. 29 U.S.C. 653(b)(4).”
Still no change: OSHA’s final rule that extends the deadline for crane operator certification
On September 26, 2014, OSHA published a final rule that extends the deadline for crane operator certification in the cranes standard at 29 CFR 1926.1427 for 3 years, to November 10, 2017 (published in the Federal Register). The final rule also extends the employer’s duty to ensure that operators are competent to operate the crane safely for the same three-year period. During this extension, OSHA will address operator qualification through additional rulemaking. OSHA will provide updated information about the crane operator certification and qualification requirements as it becomes available on OSHA's Cranes & Derricks in Construction page.