Do your employment policies comply with the new OSHA guidelines?

OSHA, the federal agency that creates and enforces worker safety rules, has new rules going into effect on December 1, 2016. Michigan has an OSHA-approved state plan, so the Michigan’s Occupational Safety and Health Administration applies to most employers in the State of Michigan. However, the federal government retains enforcement of the anti-retaliation provisions of OSHA with respect to the private sector.

There are new “anti-retaliation” protections that will likely require changes to employment policies. For example, most current policies require that an employee “immediately” report a workplace injury. The new guidelines clarify that requiring immediate reporting all injuries may not be reasonable since injuries can develop over time.

In addition, employees must be informed about the requirements of the anti-retaliation rules. If you have a current OSHA poster, with the standard notices, it should cover this requirement. Many employers only have a MIOSHA poster that do not specifically address the anti-retaliation rule.

The guidelines also address safety “incentive programs” which might have the effect of discouraging the reporting of workplace injuries. A program that has the effect of punishing people for reporting injuries or offer benefits for not reporting injuries is considered retaliatory and is explicitly illegal. Any incentive program or company rule is illegal if it penalizes anyone or denies a benefit on the basis of any injury or illness report. For example, a policy is illegal if an entire shift is denied a safety bonus due to an employee being injured. However, an incentive program may reward employees for correctly following safety rules, since that is different from making the penalty or reward based on whether injuries were reported.

The rules may also require an amendment to a company’s drug testing policy. The new rule is trying to prohibit employers from taking action that would dissuade an employee from reporting an injury. OSHA now prohibits any blanket post-injury drug testing policy that deters proper reporting of injuries. Therefore, OSHA instructs employers to limit post-incident drug testing to situations in which drug use is likely to have contributed to the accident, and for which the drug test can accurately identify impairment caused by drug use. For example, it would be improper to require drug testing for a bee sting, a repetitive strain injury or an injury caused by a lack of machine guarding or machine malfunction.

Though outside the scope of this article, there are also new electronic reporting requirements going into effect in 2017. Because of the broad definition of what is considered a high risk industry, these rules will apply to almost all employers that have at least 20 employees if those employers are not strictly just doing office work. Data about injuries, excluding employee specific information, will be publicly posted on a government website accessible by anyone. State plans, such as Michigan’s, must adopt requirements that are substantially identical to the requirements of OSHA. This deadline for Michigan to adopt these regulations has come and gone by the posting of this article.

For more information, contact an employment lawyer at Cunningham Dalman, PC.

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