New OSHA Electronic Reporting Rule to Affect Drug and Alcohol Testing

On May 12th, the Occupational Safety and Health Administration (OSHA) published its Final Rule on electronic reporting of workplace injuries and illnesses.  Effective August 10, 2016, employers will be required to establish a “reasonable procedure” by which employees can report work-related injuries and illnesses.  Additional employer reporting requirements will be phased in over the next three (3) years, including:

All companies with more than 250 employees will need to submit electronic versions of its Form 300 (“Log of Work-Related Injuries and Illnesses”), Form 300A (“Summary of Work-Related Injuries and Illnesses”), and Form 301 (“Injury and Illness Incident Report”); and

Companies with 20 to 249 employees in designated industries (including construction, agriculture, and manufacturing) will begin submitting electronic versions of their Form 300A.

More significantly, although the Final Rule does not specifically address drug or alcohol testing, the agency’s accompanying comments make clear that “automatic” post-incident drug or alcohol testing is a thing of the past.  According to OSHA, employer policies should limit post-incident testing to situations in which employee drug or alcohol use is likely to have contributed to the incident, and for which the test can accurately identify impairment caused by drug or alcohol use.  Employers with “blanket” post-accident testing policies should revise them to limit testing to those circumstances where it appears the employee caused or contributed to the accident, and then test for only very recent drug or alcohol use.  OSHA’s change in policy appears to be the result of its fear that automatic post-incident drug and alcohol testing deters employees from reporting accidents and injuries.