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Regulatory

OSHA will need to establish the three elements of retaliation required to keep under OSHA regulations. The content of
to prove a violation: these establishment-specific submissions depends on the size
1. A protected report of an injury or illness occurred. and industry of the employer.
2. There was an adverse action taken by the employer. Employers should use this information to benchmark
3. Causation occurred. their own safety performance. Currently, employers have no
way to compare their safety performance with their competi-
The general principle here is that drug testing may not be tion in their industry. Using data collected under the final rule,
used by the employer as a form of discipline against employ- employers will be able to compare injury rates at their estab-
ees who report and injury or illness, but may be used as a lishments to those at comparable establishments, set workplace
toll to evaluate the root causes of workplace injuries and safety goals benchmarked to other establishments in their
illnesses in appropriate circumstances. Drug testing an industry, and continually improve on health safety preventative
employee whose injury could not possibly have been caused programs and reducing workplace injuries and illness.
by drug use would likely violate section 1904.35(b)(1)(iv). The final rule took effect this past January 1, and report-
For example, drug testing an employee for reporting repet- ing requirements will be phased in over two years, as follows:
itive strain injury would likely not be objectively reasonable • All establishments with 250 or more employees in
because drug use could not have contributed to the injury. industries covered by the recordkeeping regulation
Section 1904.35(b)(1)(iv) prohibits employers from admin- must electronically submit to OSHA injury and illness
istering a drug test in an unnecessarily punitive manner information.
regardless of whether the employer had reasonable basis for • Establishments with 250 or more employees must begin
requiring the test. submitting information from Form 300A by July 1,
2017, and must submit information from all forms
Does the new rule affect workplace (300A, 300, and 301) by July 1, 2018. Beginning in
incentive programs? 2019 and every year thereafter, the information must be
submitted by March 2.
The new rule does not prohibit incentive programs. • Establishments with 20 to 249 employees must begin
However, employers must not create incentive programs submitting information from Form 300A by July 1,
that deter or discourage an employee from reporting an 2017, and again by July 1, 2018. Beginning in 2019 and
injury or illness. Incentive programs should encourage every year thereafter, the information must be submit-
safe work practices and promote employee participation in ted by March 2, 2019.
safety-related activities. • Establishments with fewer than 20 employees at all
Section 1904.35(b)(1)(iv) prohibits employers from times during the year do not have to routinely submit
taking adverse action against employees simply because they information electronically to OSHA.
reported a work-related injuries of illness. Withholding a
benefit such as a cash prize drawing or substantial award OSHA has provided a brief tutorial on completing the OSHA
simply because of a reported injury or illness would likely Recordkeeping forms that can located at https://www.osha.
violate the standard regardless of whether such an adverse gov/recordkeeping/tutorial/player.html, and should be taken
action is taken pursuant to an incentive program. OSHA by the person reporting to BLS and OSHA from your resort.
encourages employers to find creative ways to incentivize The ski resort industry has two NAICS code clas-
safe work practices and accident prevention measures that do sifications: NAICS Code 713920 Ski Resorts Without
not proportionally penalize workers who report work related Accommodations, and NAICS Code 721110 Ski Resorts
injuries of illnesses. With Accommodations. Neither of these fall under a high
risk industry.
What is new about the annual electronic To determine if you need to provide OSHA with the
submission of recordkeeping requirements? required data for an establishment, you need to deter-
mine the establishment’s peak employment during the last
The final rule revises OSHA’s regulation on Recording and calendar year. Each individual employed in the establish-
Reporting Occupational Injuries and Illnesses 29 CFR 1904. ment at any time during the calendar year counts as one
The new rule requires certain employers to electronically employee, including full-time, part-time, seasonal, and tem-
submit injury and illness data to OSHA that they are already porary workers.

46 | NSAA JOURNAL | CONVENTION 2017