New OSHA rules reshape drug testing and filing requirements

New rules, under the Occupational Safety and Health Act (OSHA), will have widespread ripples in the business world this year.

“Big changes are coming to drug-testing policies and the way injuries and illnesses are reported — and there are a lot of nuances that employers need to make sure they are following within the new legislation,” says Josh Daly, ARM, a risk management consultant at Arthur J. Gallagher & Co.

Smart Business spoke with Daly about what these OSHA changes mean for employers.

What are OSHA’s new recordkeeping requirements?

In order to prevent work-related injuries and illnesses, OSHA has for decades required almost all employers keep track of their work injuries and illnesses in an OSHA 300 log. This information was internal and only provided to OSHA in the event of a physical audit or written request. Now, certain employers also must log on to OSHA’s website and submit this recorded information electronically.

The idea is that this will nudge employers into improving workplace safety and health, because the information ultimately will be posted to OSHA’s website. OSHA also plans to use this for its own data analysis, helping it spot trends that need to be addressed, including potential audits with certain employers.

While OSHA claims all personally identifiable information will be removed when the data is posted, employers need to understand they’re creating a permanent record that can be used as a competitive advantage or disadvantage after it’s been publically disclosed.

Who needs to file these electronic submissions?

If your organization has a single physical location with 250 or more employees and has been required to keep records previously, you will have to submit this data.

In addition, if your company has between 20 and 249 employees and you are in what OSHA deems a high-risk industry, you have to submit this data. The term ‘high risk’ applies to more industry classifications than you may think. For example, a variety of grocery stores, department stores, general rental centers, food service distributors, etc., will now be required to post this information.

If you’re already tracking this data and you fall into one of the two required categories, make sure your recordkeeping is in an easily transferable electronic format. It’s also a good idea to spend more time reviewing this data to verify accuracy, before you submit it.

What do employers need to know about the new OSHA rules on drug testing?

Under the new law, OSHA has ruled against mandatory ‘blanket’ post-accident drug screenings for all employers. It believes that employees don’t report legitimate workplace injuries because of these policies, and therefore they are retaliatory.

OSHA’s comments seem to indicate drug testing can be administered when there is a reasonable belief of drug use, such as a motor vehicle or forklift accident. This rule doesn’t apply if you have to drug test for a state or federal guidelines, such as a mandatory post-accident drug test as part of a commercial driver’s license. And you can still continue pre-employment drug testing and random drug testing.

Since enforcement of this law began Dec. 1, 2016, it’s a good idea with this increased scrutiny to remind all your employees — not just senior management — of your organization’s anti-retaliation practices, and document the discussion.

Also, consult your risk management professionals and legal counsel to verify that your internal policies and procedures, including safety incentive programs, are reasonable and in compliance with OSHA’s revised stance on workplace retaliation.

With workplace incidents now requiring independent review, it will be important to set up an efficient assessment process to ensure that the testing that is still allowed is completed in a timely manner.

While these changes won’t significantly alter your existing responsibilities, they increase the risk of a citation and need to be considered as your organization evaluates its risk management programs. For the complete list of changes, visit OSHA’s website.

Insights Insurance/Risk Management is brought to you by Arthur J. Gallagher & Co.