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It has been 6 months since OSHA issued its’ new “Reasonable Reporting Procedure” Rule. This regulation impacts both “blanket” post-accident drug testing policies and “reporting of accident” policies. Yet, there are many organizations that are still not aware of this requirement.

OSHA’s “Reasonable Reporting Procedure” Rule – Are You In Compliance?

It has been 6 months since OSHA (Occupational Health and Safety Administration) issued its’ “Reasonable Reporting Procedure” Rule {Regulation 1904.35(b)(1)(i)}. This regulation impacts both “blanket” post-accident drug testing policies and “reporting of accident” policies, yet there are many organizations that are still not aware of this requirement. This newer regulation requires employers to 1) have a “reasonable procedure” for employees to report work-related injuries and illnesses, and (2) not discriminate or retaliate against employees who report such injuries or illnesses. The rationale for these new requirements is that employees should not be discouraged or punished in any way for exercising their right under the Occupational Safety and Health Act to report a work-related injury or illness.

I. Blanket Post-Accident Drug Testing Policies

Therefore, blanket post-accident drug testing policies which require all employees to be drug tested after an accident is in violation of this regulation because it may deter employees from properly reporting an accident. In explaining their stance on this new rule, OSHA explained that the Agency was not attempting to ban all post-accident drug testing. Such testing is allowed if an employer conducts the testing to comply with the requirements of a state or federal law or regulation or, if there was a “reasonable possibility” that drug use was a contributing factor in the injury or illness.

For example, an employee who reports a repetitive motion or cumulative trauma musculoskeletal condition, such as tendinitis or a back strain, or who reports that he has been stung by a bee should not be drug tested by their employer because there is no “reasonable possibility” to believe that the employee’s injury or condition arose because the employee was in any way drug-impaired. In OSHA’s view, when a bee stings an employee or an employee develops a musculoskeletal disorder, the employee is in no way contributing to the injury or condition. If an employee has not contributed in any way to an injury or illness, then there can be no “reasonable possibility” that drugs were involved.

However, post-accident drug testing would be permissible if it is believed that the employee’s drug use is likely to have contributed to the incident. This may include situations where an employee is injured after failing to “lock out” equipment that is being serviced, an employee drives a forklift into a wall, trips and falls, hits a finger with a hammer, or cuts a finger with a knife. The important consideration for employers is whether there is a reasonable suspicion that the incident occurred due to the employee being impaired by drugs.

II. Reporting of Work-related Accidents and Illnesses

OSHA has also stated that while employers may have a “reasonable procedure” for employees to report work-related injuries and illnesses, requiring employees to report injuries or illnesses “immediately” is not reasonable. OSHA believes that such policies deter employees from reporting accidents and illnesses if they do not due so right away for fear of the consequences (e.g., reprimand, suspension, termination) from the employer.

It would be reasonable to require employees to report a work-related injury or illness as soon as practical or possible after realizing they have the kind of injury or illness that requires reporting to the employer, such as the same or next business day when possible. However, it would not be reasonable to discipline employees for failing to report an accident or illness immediately when they do not even

realize that they have a work-related injury/illness (e.g., bending to pick up a box and feeling a twinge, not noticing a laceration).

It would also be reasonable to require employees to report the injury/illness to a supervisor/manager through “reasonable” means, such as by phone, email, or in person. However, it would not be reasonable to require ill or injured employees to report in person if they are unable to do so. Likewise, it would not be reasonable to require employees to have to follow numerous or excessive steps or procedures in order to file an accident report.

OSHA Penalties

Any adverse action that an employer takes against an employee who is exercising his/her rights under this new regulation is viewed by OSHA as a violation of §11(c) of the OSHA Act. OSHA could issue citations within six months of the adverse action, and the employer would not only be issued a citation with proposed penalties, but also could be ordered to reinstatement the employee with full back pay (for an employee terminated) and other financial penalties.

The Author

Lauren Brenner is a highly-experienced HR Generalist and Consultant who brings to clients more than 30 years of experience. As Principal and President of HR Connection, an HR Consulting organization, she primarily focuses on assisting small to mid-size businesses with their HR challenges. Lauren has been involved with initiatives in talent sourcing, hiring practices, employee relations, compensation, safety compliance and other HR Generalist areas. She works to balance HR practices with the strategic needs of each organization. She may be reached at: lbrenner@telamonins.com.