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[Source: Bob Evnen & Kelly Ekler, Woods & Aitken LLC, 11.2016 | Keywords: OSHA, EEO-1 Reporting, Safety]

Dealers across the country will be updating their internal practices in the next month to comply with new requirements imposed under anti-discrimination and workplace safety laws.

The changes in workplace safety rules stem from a 273-page Final Rule published by the Occupational Safety and Health Administration (OSHA) on May 11, 2016. Private dealers are subject to OSHA’s jurisdiction. Dealers in Nebraska are covered directly through federal OSHA, where Iowa dealers are covered through Iowa OSHA.

The new EEO-1 reporting requirements apply to dealers with 100 or more employees.

OSHA Drug Testing

The Final Rule from OSHA contains “guidance” that is not covered by any specific rule change. The guidance impacts employer drug-testing policies. It does not ban employee drug testing, but cautions employers against using drug testing (or the threat of testing) as an adverse action against employees who report injuries or illnesses. In other words, “blanket” post-accident testing policies might be considered retaliatory. OSHA believes that a policy automatically requiring drug testing of any employee involved in an accident that causes personal injury and/or property damage, even where drug use is not suspected as a contributing factor, discourages employees from reporting workplace accidents. OSHA explains, “it would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of a machine guard or a machine or tool malfunction.”

Per OSHA, workplace drug testing should be limited to situations where:

• Employee drug use is likely to have contributed to the incident; and

• The test can accurately identify impairment caused by drug use.

In its guidance, OSHA states that it is not requiring employers to “specifically suspect drug use before testing, but there should be a reasonable probability that drug use by the reporting employee was a contributing factor to the reported injury or illness in order for an employer to require drug testing.” Although Iowa OSHA has not yet adopted this guidance, Iowa OSHA provides equal or greater protection for employees than federal guidelines and generally follows federal OSHA’s lead in interpreting legal requirements.

OSHA addresses the potential conflict with its guidance and state law. OSHA states: “[i]f an employer conducts drug testing to comply with requirements of a state or federal law or regulation, the employer’s motive could not be retaliatory and the final rule would not prohibit such testing.”  What is “required” by state law is different than what is “permitted” under state law. There is a gray area here because, under state law, a positive drug test may affect eligibility for workers’ compensation or unemployment benefits. Using OSHA’s reasoning, an employer using drug testing to determine whether an employee is disqualified under workers’ compensation and/or unemployment laws might not be acting in a retaliatory manner for purposes of OSHA.

The Final Rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster, available here for Nebraska employers: https://www.osha.gov/publications/poster.html or here for Iowa employers: http://www.iowaosha.gov/iowa-osha-safety-and-health-poster.

Considering OSHA’s new guidance on drug-testing, dealers should review their drug-testing policies and revise them if necessary to reduce potential liability for a retaliation claim. Dealers should ensure compliance with the new guidance no later than December 1, 2016, when OSHA will begin enforcement of the anti-retaliation provisions of the Final Rule.

OSHA Electronic Reporting

The provisions of the Final Rule on recordkeeping require specified employers to electronically submit data that has historically been maintained in hard copy format at the business’ location. Specifically:

• No later than July 1, 2017, establishments with 250 or more employees that are subject to OSHA’s recordkeeping regulation must electronically submit to OSHA some of the information from the Log of Work-Related Injuries and Illnesses (OSHA Form 300), the Summary of Work-Related Injuries and Illnesses (OSHA Form 300A), and the Injury and Illness Incident Report (OSHA Form 301).

• No later than July 1, 2017, establishments with 20-249 employees in designated high-risk industries (based on NAICS industry code) must electronically submit to OSHA some of the information from the Summary of Work-Related Injuries and Illnesses (OSHA Form 300A). The Final Rule and the NAIS codes are not completely clear, but it looks like equipment dealers (especially with repair departments, which covers most dealers) are covered.

• Establishments with fewer than 20 employees at all times during the year do not have to routinely submit information electronically to OSHA. Other employers may be directed to report electronically by OSHA.

Iowa OSHA has adopted these provisions of the Final Rule. Iowa OSHA does not plan to have a separate state website for reporting, rather, the expectation is that there will be one federal website but the details are still being worked out.

EEO-1 Report and Pay Data

Dealers with 100 or more employees will need to collect pay data in 2017 for new reporting requirements on the revised EEO-1 report. The revised EEO-1 will require employers to report W-2 earnings data and total hours worked in 12 pay bands for each of 10 job categories and 14 gender, race and ethnicity categories. The revised EEO-1 report will require covered dealers to collect pay data from September 30, 2017 to March 31, 2018, and will be due on March 31, 2018.

Dealers with EEO-1 reporting obligations should evaluate their current information systems to determine how the necessary pay data can be best collected. Dealers must be aware that any wage disparities among gender, race, or ethnicity that appear from the pay data may be grounds for a discrimination claim. Consequently, dealers might want to have an attorney conduct an internal audit of their pay data well in advance of September 30, 2017, to determine whether potential liability exists.

If you have questions or concerns about these updates or any other labor or employment matter, call the INEDA Human Resource Helpline toll-free at (855) 277-5575.