On Nov. 10, Oregon OSHA adopted changes to its Division 1 requirements for reporting workplace injuries and illnesses
to align them with the requirements in federal OSHA’s unusually titled final rule, Improve Tracking of Workplace Injuries and Illnesses. (As part of its state plan agreement with federal OSHA, Oregon OSHA’s rules must be at least as affective as OSHA’s, thus the change.)
The key changes in Oregon OSHA’s Division 1 rule – 437-001-0700, Recording Workplace Injuries and Illnesses – become effective May 1, 2017, and require employers to:
- Establish a procedure for employees to report work-related injuries and illnesses promptly and accurately.
- Inform employees about the procedure and tell them how they can report injuries and illnesses.
- Inform employees that they have the right to report work-related injuries and illnesses free from retaliation.
- Electronically submit injury and illness records to federal OSHA annually if they are in one of the following categories:
- They had 250 or more employees at any time during the previous calendar year and are required to maintain an OSHA 300 log
- They are in an industry listed in the rule (437-001-0700 – Table 8) and had 20 or more employees but fewer than 250 employees at any time during the previous calendar year.
- Beginning in 2019, the submission deadline will be changed from July 1st to March 2nd.
Setting up reporting procedures
Employers can set up their own procedures for reporting work-related injuries and illnesses – the only restriction is that the procedure must not deter or discourage an employee from accurately reporting a workplace injury or illness.
The procedure must give employees a reasonable time to determine if the injury is serious enough to report. A procedure that requires immediate reporting without accounting for the nature of the injury would not be reasonable, for example.
The procedure must not make reporting so difficult or complicated that an employee would be discouraged from reporting. For example, if an employee must travel a significant distance to report or must report the same injury or illness multiple times to multiple levels of management the procedure would not be reasonable.
Informing employees about their rights
Informing employees about their rights to report workplace injuries and illnesses free from retaliation is easy. Meet the requirement by posting the current version of Oregon OSHA’s It’s the law! poster or by telling the employees they have a right to report work-related injuries and illnesses free from retaliation – a written notice to each employee or an email will do.
Are discipline, drug, and incentive programs affected by the changes?
Not specifically; discipline, drug, and incentive programs aren’t mentioned in the changes. However, it’s a good idea to review these programs, if you have them, to ensure that they don’t discourage employees from exercising their right to report workplace injuries and illnesses.
Discipline: Don’t use discipline, or the threat of disciplinary action, to retaliate against an employee for reporting an injury or illness. Your safety program should treat all workers consistently if they break rules – regardless of whether they were, or were not, injured.
Incentives: Don’t use incentive programs to penalize workers for reporting an injury or illness. For example, if an employee reports an injury, and is subsequently denied a benefit as part of an incentive program, this may constitute retaliation against the employee for exercising the right to report. Incentive programs should encourage safe work practices and promote worker participation in safety-related activities.
Scenario 1: Employer informs its employees that it will hold a substantial cash prize drawing for each work group at the end of each month in which no employee in the work group sustains a lost-time injury. Employee X reports an injury that he sustained while operating a mechanical power press. Employee X did not violate any employer safety rules when he sustained his injury. Employee X’s injury requires him to miss work for two days. Employer cancels the cash prize drawing for that month for Employee X’s work group because of Employee X’s lost-time injury.
Question: Did Employer violate this rule when it cancelled the cash prize drawing for Employee X’s work group because of a lost-time injury that was sustained while Employee X was following the employer’s work rules?
Answer: Yes. Cancelling a substantial cash prize drawing solely because an employee was injured and reported the injury, without regard to the circumstances surrounding the injury, would likely violate this rule. In this case, the employer retaliated against the employee (by cancelling a substantial cash prize drawing) because the employee engaged in protected activity (reporting his injury to the employer). This type of activity may also discourage reporting because a worker may feel pressure from coworkers not to cancel the drawing, or may be reluctant to report out of loyalty to those coworkers.
Drug testing: Don’t use drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness. What’s important is whether you have a reasonable basis for believing that an employee’s drug use could have contributed to the injury. There is no prohibition against post-incident drug testing under state or federal law, including workers’ compensation law, random drug testing, and pre-employment drug testing. However, post-incident drug testing will not necessarily indicate whether drug use played a direct role in the incident.
Scenario 2: Employer required Employee X to take a drug test after Employee X reported work-related carpal tunnel syndrome. Employer had no reasonable basis for suspecting that drug use could have contributed to her condition, and it had no other reasonable basis for requiring her to take a drug test. Rather, Employer routinely subjects all employees who report work-related injuries to a drug test regardless of the circumstances surrounding the injury. The state workers’ compensation program applicable to Employer did not address drug testing, and no other state or federal law requires Employer to drug test employees who sustain injuries at work.
Question: Did Employer violate the rule by subjecting Employee X to a drug test simply because she reported a work-related injury?
Answer: Yes. This new rule prohibits an employer from taking adverse action against employees simply because they report work-related injuries. Rather, employers must have a legitimate business reason for requiring a drug test, such as a reasonable belief that drug use contributed to the injury. If drug use could not reasonably have contributed to a particular injury and the employer has no other reasonable basis for requiring a drug test, the rule prohibits the employer from drug testing employees simply because they report injuries unless the drug test is conducted pursuant to another state or federal law.