November 18, 2016
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.)
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:
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 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.
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.
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.
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