There has been a recent flurry of activity in the employment law arena—including several proposed changes to employers’ reporting requirements for workplace injuries, as well as increased penalties imposed by the Occupational Safety and Health Administration (OSHA) for violations of applicable reporting requirements. Significantly, OSHA may require employers to electronically submit information regarding workplace injuries, which OSHA may then make publicly available on a new online database. Moreover, beginning August 1, 2016, fines for OSHA violations will increase substantially in order to account for inflation.
Employers were required to post their OSHA Form 300A, the Summary of Work-Related Injuries and Illnesses, in the workplace by February 1, 2016. Employers should post these forms as soon as possible, if they have not done so already. The Form 300A must remain posted until April 30, 2016.
Public Posting of Employer Reports
OSHA has indicated that it intends to require certain employers—those that are required to keep injury and illness records under Part 1904 of the OSHA regulations, had 20 or more employees in the previous year, and are in certain designated industries—to electronically submit the information from the OSHA Form 300A to OSHA annually. As OSHA has explained, the term “designated industries” includes “all industries covered by Part 1904 with a 2009 Days Away From Work, Job Restriction, or Job Transfer (DART) rate of 2.0 or greater in the Survey of Occupational Injuries and Illnesses conducted by the Bureau of Labor Statistics, excluding four selected transit industries where local government is a major employer.” Employers can view this list of proposed designated industries at the clicking here.
Controversially, OSHA intends to make this data available to the general public, in order to promote the aims of President Obama’s Open Government Initiative. Specifically, OSHA may publish, in a searchable online database, all data fields from the OSHA Form 300A (Summary form), all data fields from the OSHA Form 300 (Log) except for the employee’s name, and the data fields on the right side of the OSHA Form 301 (Incident report), including the time of the event, the injury or illness the employee suffered, and what object or substance directly harmed the employee.
Employers should be cautioned that failing to comply with OSHA’s record keeping requirements can lead to severe penalties. On November 2, 2015, President Obama signed into law the Bipartisan Budget Act of 2015. For the first time since 1990, OSHA will be authorized to raise the fines for violations to account for current inflation rates. In subsequent years, OSHA will be authorized to continue increasing fines on an annual basis to adjust for inflation. Although OSHA has not yet published the new penalty schedule, which is anticipated to be enforced beginning August 1, 2016, penalties for a serious violation will likely rise from $7,000 to $12,600 and penalties for a repeated or willful violation will likely rise from $70,000 to $126,000.
Because of these important new and proposed changes to OSHA’s recordkeeping regulations and penalties, employers should take care to determine whether they will be covered by the updated record keeping regulation and whether any given workplace injury is reportable.