OSHA’s Founding Legislation

The Occupational Safety and Health Administration’s (OSHA’s) founding legislation mandates that the agency, among other objectives, “…perfect existing programs for providing safe and healthful working conditions.” (Public Law 91-596)

Since its creation in 1971, the agency has helped drive serious workplace injuries down from 11 per 100 workers to only 3 per 100 in 2015; however, the rate of decline has slowed in recent years.  To continue perfecting workplace health and safety, OSHA relies on large sets of accurate information to determine the root causes of common workplace hazards, allowing it to promulgate effective injury avoidance regulations.  Some of its most recent rules aim at increasing the amount of data that flow into the agency.

Why Data Gets Underreported to OSHA

While all employers understand the value of safer workplaces, and most recognize the importance of reporting workplace injuries to OSHA, there are real scenarios leading to substantial underreporting of such accidents, which deprive OSHA of the data it needs to continue improving workplace safety.  The problem for OSHA in gathering this data is that their incentives are misaligned with employers.

On the one hand, OSHA would like information on every incident, no matter how small, to enrich their data sets; on the other, employers often would rather not report incidents, especially those they may consider to be minor, both because of reporting burdens and for fear of opening themselves to potentially onerous investigations and penalties. Therefore, employers’ natural preferences to keep production running and limit scrutiny by OSHA leads to a free rider problem: employers hope to gain the benefits of better workplace safety regulations without the cost of having to contribute to their creation. These incentives have led some employers to go so far as to retaliate against individual workers who report health and safety incidents to OSHA, thereby further chilling OSHA’s data collection abilities. In response, the agency has implemented new rules to encourage reporting while discouraging retaliation with the goal of better understanding how workplace injuries can be avoided.

The OSHA vs. Employer Regulatory Conundrum 

Let’s examine one of the main ways employers retaliate against employees reporting to OSHA, namely the threat and performance of post-accident drug testing. Arguably, a worksite accident gives the employer an option to perform drug testing on all employees associated with the incident; such discretion would allow employers to cherry pick when and whom to drug test, potentially allowing them to target unwanted employees who may fail, thereby retaliating under the cover of a legitimate disciplinary event. OSHA wants to limit this type of retaliation by regulating how drug testing is administered after workplace accidents. The problem for OSHA in crafting such drug testing restrictions is that concurrently, they would like a record of every incidence when drugs are a contributing factor to injury, and anti-retaliation restrictions on drug testing will also restrict the drug information available for the agency to collect. As a result, OSHA must perform a balancing act in drafting such regulations that simultaneously minimizes retaliation while maximizing data collection that may increase safety.

New OSHA Rules for Employers to Provide Safe Working Conditions

OSHA’s answer to this conundrum is found in the Final Rule to Improve Tracking of Workplace Injuries and Illnesses. It has three main goals: 1) to improve record keeping for work related injuries and the procedure for reporting those incidents; 2) to inform employees of their right to report injuries free from retaliation, and 3) to prevent employee retaliation against the reporting of workplace injuries.  Concerns were raised prior to the rule’s adoption regarding vagueness in OSHA’s rules pertaining to post-accident drug testing. The Final Rule and its guidance clarified this point, showing the agency’s sensitivity to balance drug collection information with worker fairness by stating that the:

This flexibility in the Rule allows employers to test post-accident, but tempers that right with employee protections via the requirement that such tests be used only when there is an objectively reasonable basis to do so. (Naturally, in many situations this Rule is not applicable, and it does not restrict drug testing when other federal or state regulations mandate that they be performed.)

While a reasonableness standard inevitably injects a level of uncertainty in the Rule, some examples may help clarify its application. If an employee operating construction equipment is injured after hitting a stationary structure, an employer is allowed to administer a drug test because the employee’s conduct contributed to his injury, and such conduct could be affected by drug use.  In contrast, if an employee reports work-related carpal tunnel syndrome, and the employer has a policy of drug testing all reported workplace injuries, such a drug test would violate the new rule because drug use does not reasonably contribute to this type of injury.

The dilemma for employers will be found in cases that are not as clear-cut as these two examples; inevitably, situations will arise that can arguably allow or prohibit drug testing. In these instances, the best policy is to evaluate the situation and make sure there is some objective basis to administer the drug test.  But while occasionally ambiguous situations will arise under the Rule, it should benefit OSHA’s mandate to improve workplace safety, as it encourages increased reporting by protecting employees from retaliation, while still capturing data where drug use contributes to injury, resulting in a win-win for the agency.

For any questions please contact the Hinckley Allen attorney with whom you regularly work, or one of our Labor & Employment attorneys.