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Federal Register Vol. 79, No. 157 /Thursday,August 14, 2014Supplemental Notice of Proposed RulemakingImprove Tracking of Workplace Injuries and IllnessesOf the 18 questions 5 main questions addressAdverse action or disciplinethat may discourage an employeefrom reporting and injury or illnessIn this group is the mention ofdrug testing

Federal Register Vol. 79, No. 157 /Thursday, August 14, 2014 Proposed RulesImprove Tracking of Workplace Injuries and IllnessesThe drug testing discussion lead-in is:Adverse actions mentioned byparticipants in the public meeting(January 09–10, 2014)included requiring employeeswho reported an injury to undergodrug testing where there was noreason to suspect drug use,

Federal Register Vol. 79, No. 157 /Thursday, August 14, 2014 Proposed RulesImprove Tracking of Workplace Injuries and IllnessesA question in this "adverse action" group is:Are you aware of employer practices orpolicies to take adverse action againstpersons who report injuries or illnesses?Please describe them?

Federal Register Vol. 79, No. 157 /Thursday, August 14, 2014 Proposed RulesImprove Tracking of Workplace Injuries and IllnessesA question in this "adverse action" group is:Are you aware of any particular situationswhere an employee decided not to report aninjury or illness to his or her employerbecause of a fear that the employer wouldtake adverse action against the employee?If so, please describe the situation, includingthe nature of the injury or illness and thereasons the employee had for believing he orshe would be retaliated against.

Federal Register Vol. 79, No. 157 /Thursday, August 14, 2014 Proposed RulesImprove Tracking of Workplace Injuries and IllnessesA question in this "adverse action" group is:What kinds of adverse actions mightlead an employee to decide not toreport an injury or illness?Are there other employer actions thatwould not dissuade a reasonableemployeefrom reporting an injury or illness?

Federal Register Vol. 79, No. 157 /Thursday, August 14, 2014 Proposed RulesImprove Tracking of Workplace Injuries and IllnessesA question in this "adverse action" group is:OSHA encourages employers toenforce safety rules as part of awell-functioning workplace safety program.Are there any employer practices thatOSHA should explicitly exclude under thisprovision to ensure that employers are ableto run an effective workplace safetyprogram?

Federal Register Vol. 79, No. 157 /Thursday, August 14, 2014 Proposed RulesImprove Tracking of Workplace Injuries and IllnessesA question in this "adverse action" group is:OSHA encourages employers to enforcesafety rules as part of a well-functioningworkplace safety program.Are there any employer practices thatOSHA should explicitly exclude underthis provision to ensure that employersare able to run an effective workplacesafety program?

Federal Register Vol. 79, No. 157 /Thursday, August 14, 2014 Proposed RulesImprove Tracking of Workplace Injuries and IllnessesA question in this "adverse action" group is:What other actions can OSHA take toaddress the issue of employers whodiscourage employees from reportinginjuries and illnesses?

Federal Register Vol. 81, No. 92 May 12, 2016Final RuleEffective on January 1, 2017, Except 1904.35 and 1904.36,which become effective on August 10, 2016 Preamble p 29672:OSHA received a number of commentsexpressing concern that this section of thefinal rule will have a chilling effect onemployers disciplining employees whoviolate safety rules, thereby contributing to aless safe work environment. It is importantto note that the final rule prohibitsemployers only from taking adverse actionagainst an employee because the employeereported an injury or illness.

Federal Register Vol. 81, No. 92 May 12, 2016Final RuleEffective on January 1, 2017, Except 1904.35 and 1904.36, which become effectiveon August 10, 2016Preamble p 29672:It is important to note that the final rule prohibitsemployers only from taking adverse action against anemployee because the employee reported an injury orillness. Nothing in the final rule prohibitsemployers from disciplining employees forviolating legitimate safety rules, even if the sameemployee who violated a safety rule also wasinjured as a result of that violation and reportedthat injury or illness (provided that employeeswho violate the same work rule are treatedsimilarly without regard to whether they alsoreported a work-related illness or injury).

Federal Register Vol. 81, No. 92 May 12, 2016 Final RuleEffective on January 1, 2017, Except 1904.35 and 1904.36, which becomeeffective on August 10, 2016 Preamble p 29672:. Nothingin the final rule prohibitsemployers from discipliningemployees for violating legitimatesafety rules, even if the same employee whoviolated a safety rule also was injured as a result ofthat violation and reported that injury or illness(provided that employees who violate the samework rule are treated similarly without regard towhether they also reported a work-relatedillness or injury)

Federal Register Vol. 81, No. 92 May 12, 2016 Final RuleEffective on January 1, 2017, Except 1904.35 and 1904.36, which becomePreamble p 29672:effective on August 10, 2016. Nothing in the final rule prohibits employersfrom disciplining employees for violatinglegitimate safety rules, even if the sameemployee who violated a safety rule also wasinjured as a result of that violation and reportedthat injury or illness(provided that employees who violate thesame work rule are treated similarlywithout regard to whether they alsoreported a work-related illness or injury)

Federal Register Vol. 81, No. 92 May 12, 2016, Final RulePreamble pp 29672-3:Commenter's also pointed to policiesmandating automatic post-injury drug testingas a form of adverse action that candiscourage reporting. See, Exs 1675,1695.Although drug testing of employees may be areasonable workplace policy in somesituations, it is often perceived as an invasionof privacy, so if an injury or illness is very unlikely to havebeen caused by employee drug use, or if the method of drugtesting does not identify impairment but only use at some timein the recent past, requiring the employee to be drug testedmay inappropriately deter reporting.

Federal Register Vol. 81, No. 92 May 12, 2016, Final RulePreamble pp 29672-3:Commenter's also pointed to policies mandating automatic post-injury drugtesting as a form of adverse action that can discourage reporting. See,e.g., Exs. 1675, 1695. Although drug testing of employees may be areasonable workplace policy in some situations, it is often perceived as anso if an injury or illnessis very unlikely to have been caused byemployee drug use, or if the method ofdrug testing does not identify impairmentbut only use at some time in the recentpast, requiringthe employee to be drug tested mayinappropriately deter reporting invasion of privacy,

Federal Register Vol. 81, No. 92 May 12, 2016, Final RulePreamble pp 29672-3: so if an injury or illnessis very unlikely to have been causedby employee drug use,or if the method of drug testing doesnot identify impairmentbut only use at some time in therecent past,requiring the employee to be drugtested may inappropriately deterreporting

Federal Register Vol. 81, No. 92 May 12, 2016, Final RulePreamble p 29673:Some commenter's stated theirbelief that drug testing of employeesis important for a safe workplace;

Comment: https://www.regulations.gov/document?D OSHA-2013-0023-1603MCAA Post-accident drug testing is a critical partof any satisfactory company safety andhealth program. purpose of protecting all workers on thejobsite, not just the would-be users.[sic Also], being found under the influence ofa drug following post-accident testing isoften all it takes to prompt an affectedemployee to seek help through an employeeassistance program or some other source

Federal Register Vol. 81, No. 92 May 12, 2016, Final RulePreamble p 29673:some [sic Commenter's]expressed concern that OSHAplanned a wholesale banon drug testing (Exs. 1667, 1674)

Federal Register Vol. 81, No. 92 May 12, 2016, Final RulePreamble p 29673:To the contrary, this final ruledoes not ban drug testing ofemployees

Federal Register Vol. 81, No. 92 May 12, 2016, Final RulePreamble p 29673:OSHA believes theevidence in the rulemakingrecord shows thatblanket post-injurydrug testing policies deterproper reporting

Federal Register Vol. 81, No. 92 May 12, 2016, Final RulePreamble p 29673: thisfinal ruledoes not ban drug testing ofemployees

Federal Register Vol. 81, No. 92 May 12, 2016, Final RulePreamble p 29673:However, the final ruledoes prohibit employers fromusing drug testing(or the threat of drug testing)as a form of adverse actionagainst employeeswho report injuries or illnesses

Federal Register Vol. 81, No. 92 May 12, 2016, Final RulePreamble p 29673:Employers need not specificallysuspect drug use before testing,but there should be areasonable possibility that drug useby the reporting employeewas a contributing factorto the reported injury or illnessin orderfor an employer to require drug testing

Letter of Interpretation August 23, .show document?p table INTERPRETATIONS&p id 31061 An employee was operating a poweredindustrial truck (a "walkie"). Her footbecame jammed between the walkie anda pallet and her steel toed shoe bent andcut the top of her toe. She received fourstitches for the laceration.At the time of the incident, the employeewas taking prescription medication for anon-work related condition

Letter of Interpretation August 23, .show document?p table INTERPRETATIONS&p id 31061 Section 1904.5(a) states,[the employer] must consider aninjury or illness to bework-relatedif an event or exposurein the work environmenteither caused or contributedto the resulting condition

Letter of Interpretation August 23, 2016https://www.osha.gov/pls/oshaweb/owadisp.show document?p table INTERPRETATIONS&p id 31061 The injury described inyour scenario resulted fromoperation of workplaceequipment. POLICY

Letter of Interpretation August 23, 2016https://www.osha.gov/pls/oshaweb/owadisp.show document?p table INTERPRETATIONS&p id 31061POLICY Under Section 1904.5(b)(2)(ii), anevent or exposure in the workenvironment can play no part in theinjury. The facts of your scenariodo not meet this exceptionbecause the injury describedresulted from operation ofworkplace equipment

Letter of Interpretation August 23, .show document?p table INTERPRETATIONS&p id 31061 the exemption to work relatednessunder Section 1904.5(b)(2)(vi)would not apply for the same reason.Under Section 1904.5(b)(2)(vi) you arenot required to record an injury orillness if the injury or illness is solely theresult of self-medication for anon-work-related condition [sic HAS TO BE RECORDED]

Letter of Interpretation August 23, .show document?p table INTERPRETATIONS&p id 31061At the time of the incident, theemployee was taking prescriptionmedication for a non-work relatedcondition HAS TO BE RECORDED

29 CFR 1904 January 19, 2001 Effective Jan 1, 20021904.5(b)(2) Exceptions to 'Work-Related'Are there situations where an injury orillness occurs in the work environmentand is not considered work-related?Yes, an injury or illness occurring in thework environment that falls under one ofthe following exceptions is not workrelated, and therefore is not recordable.

29 CFR 1904 January 19, 2001 Effective Jan 1, 20021904.5(b)(2) From 9 Exceptions to 'Work-Related'(ii) The injury or illness involvessigns or symptoms that surface at work butresult solely from a non-work-related event orexposure that occurs outside the workenvironment.(vi) The injury or illness is solely the result ofpersonal grooming,self medication for a non-work-related condition,or is intentionally self-inflicted.

POLICY his hand was caught between twoobjects. After receiving treatmentfor the injury, the employee wasimmediately given apost-accident drug test.The results of the drug testindicated the employee wasintoxicated from alcohol Letter of Interpretation March 21, 2016https://www.osha.gov/pls/oshaweb/owadisp.show document?p table INTERPRETATIONS&p id 30545

POLICY OSHA's Office of OccupationalMedicine and Nursing concluded thatthe intake of alcohol does not treat thedisorder of alcoholism. Instead, drinkingalcohol is a manifestation of thedisorder. Accordingly, the injurydescribed in the scenario abovedoes not meet the exception in Section1904.5(b)(2)(vi) for self-medication.Letter of Interpretation March 21, 2016https://www.osha.gov/pls/oshaweb/owadisp.show document?p table INTERPRETATIONS&p id 30545

POLICY drinking alcohol is a manifestationof the disorder. Accordingly, theinjury described in the scenarioabove does not meet the exception[sic for work related]in 1904.5(b)(2)(vi) forself-medication.Has to Be RecordedLetter of Interpretation March 21, 2016https://www.osha.gov/pls/oshaweb/owadisp.show document?p table INTERPRETATIONS&p id 30545

POLICY278Letters of Interpretation fromOctober 29, 2001 toSeptember 12, 2016

Federal Register Vol. 81, No. 92 May 12, 2016, Final Rule From Preamble p 29673: commenter's also raised the concern that thefinal rule will conflict with drug testingrequirements contained inworkers' compensation laws If an employer conducts drug testing to complywith the requirements of a state or federal lawor regulation, the employer's motivewould not be retaliatory and the final rule wouldnot prohibit such testing Section 4(b)(4) of the Act prohibits OSHA fromsuperseding or affectingworkers' compensation laws

Federal Register Vol. 81, No. 92 May 12, 2016, Final Rule From Preamble p 29673:If an employer conducts drug testingto comply with the requirements of astate or federal law or regulation, theemployer's motive would not beretaliatory and the final rule would notprohibit such testing Section 4(b)(4) of the Act prohibitsOSHA from superseding or affectingworkers' compensation laws

Federal Register Vol. 81, No. 92 May 12, 2016, Final RulePreamble p 29673:However, the final ruledoes prohibit employersfrom using drug testing(or the threat of drug testing)as a form of adverse actionagainst employeeswho report injuries or illnesses

Occupational Safety and Health ActDecember 29, 1970Section 11 Judicial ReviewParagraph (c)11c

Occupational Safety and Health ActDecember 29, 1970SEC. 11c Judicial Review(c) (1) No person shall discharge orin any manner discriminate against anyemployee because such employee hasfiled any complaint or instituted or caused tobe instituted any proceeding under or relatedto this Actor has testified or is about to testify in anysuch proceeding or because of the exercise bysuch employee on behalf of himself or othersof any right afforded by this Act

Occupational Safety and Health ActDecember 29, 1970SEC. 11c Judicial Review(2) Any employee who believes that he has been dischargedor otherwise discriminated against by any person in violationof this subsection may, within thirty days after such violationoccurs, file a complaint with the Secretary alleging suchdiscrimination. Upon receipt of such complaint, the Secretaryshall cause such investigation to be made as he deemsappropriate. If upon such investigation, the Secretarydetermines that the provisions of this subsection have beenviolated, he shall bring an action in any appropriate UnitedStates district court against such person. In any such actionthe United States district courts shall have jurisdiction, forcause shown to restrain violations of paragraph (1) of thissubsection and order all appropriate relief including rehiring orreinstatement of the employee to his former position with backpay.

Occupational Safety and Health ActSEC. 11c Judicial ReviewDecember 29, 1970(2) Any employee who believes that hehas been discharged or otherwisediscriminated against by any person inviolation of this subsection may, withinthirty days after such violation occurs, filea complaint with the Secretary allegingsuch discrimination. Upon receipt of suchcomplaint, the Secretary shall causesuch investigation to be made as hedeems appropriate.

January 2001 1904.36Prohibition againstdiscrimination.Section 11(c) of the Actprohibits you fromdiscriminating against anemployee for reporting awork-related fatality, injuryor illness. That provision ofthe Act also protects theemployee who files a safetyand health complaint, asksfor access to the Part 1904records, or otherwiseexercises any rightsafforded by the OSH Act.May 12, 2016 1904.36Prohibition againstdiscrimination.In addition to §1904.35,section 11(c) of the OSH Actalso prohibits you fromdiscriminating against anemployee for reporting awork-related fatality, injury,or illness. That provision ofthe Act also protects theemployee who files a safetyand health complaint, asksfor access to the part 1904records, or otherwiseexercises any rights affordedby the OSH Act.

Employee Involvement2001 1904.35(a) Basic requirement. Youremployees and theirrepresentativesmust be involved in therecordkeeping system inseveral ways.May 12, 2016 1904.35(a) Basic requirement. Youremployees and theirrepresentativesmust be involved in therecordkeeping system inseveral ways.(a)(1) You must inform eachemployee of how he or sheis to report an injury orillness to you.(a)(1) You must inform eachemployee of how he or she isto report a work-related injuryor illness to you.(a)(2)You must providelimited access to your injuryand illness records for youremployees and theirrepresentatives.(a)(2) You must provideemployees with theinformation described inparagrap

OSHA's Revised Recordkeeping Rule, and Post-Incident Drug Test Issue Camille Villanova 202-255-6194 cvsafety@hotmail.com . January 24-25, 2017 Camille Villanova cvsafety@hotmail.com Overview OSHA Recordkeeping Standards, Policies, Drug Testing OSHA Recordkeeping Revisions