In November 2013, in response to a Bureau of Labor Statistics report than an estimated three millions workers were injured on the job in 2012, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) proposed amendments to its recordkeeping regulation mandating that certain employers report all workplace injuries and illnesses electronically. In addition to the electronic reporting requirement, the amendments include provisions barring employers from retaliating against employees for reporting workplace incidents and requiring employers to notify employees of their rights to report such incidents to have access to workplace injury data. On May 12, 2016, almost three years later, the final amendments were published in the Federal Register.
In a statement released at the time of publication of the amendment, Dr. David Michaels, assistant secretary of labor for OSHA, commented that he expected that the public disclosure of work injury data, which employers are already required to keep, will encourage employers to increase their efforts to prevent workplace incidents. “Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace,” observed Dr. Michaels. “Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers and the public that they operate safe and well-managed facilities.”
Who is covered? The amendment’s electronic reporting requirements will apply to every “establishment” with 250 or more employees (as well as some smaller “establishments” involved in certain hazardous industries). An “establishment” is a single physical location where work is performed. For employers in construction, or similar operations working at various locations, the “establishment” will be considered the main or branch office, or similar location. As an aside, it is important to note OSHA has made very clear that the anti-retaliation provisions, which clarify that an employer must have a reasonable procedure for reporting workplace injuries, will apply to all employers.
What information must be electronically submitted? Covered employers will be required to submit OSHA 300 Logs, OSHA 301 Forms, and OSHA 300A Summaries electronically every year by uploading them into a database maintained by OSHA. OSHA will post the information from 300 Logs and 301 Forms on its website, with employee names and other identifying information redacted before posting, for review and access by any member of the public. In doing so, OSHA said that its purpose will be to create “the largest publicly available data set on work injuries and illnesses,” which will enable researchers to more effectively study the causes of workplace injuries, identify new workplace safety hazards before they become widespread, and evaluate the effectiveness of injury and illness prevention activities.
When must compliance begin? While the new amendments take effect August 10, 2016, the good news for covered employers is that the electronic submission requirements will be phased in beginning next year. Specifically, employers must begin submitting their 300A Summaries electronically on July 1, 2017, and must begin submitting their 300 Logs and 301 Forms by July 1, 2018. In 2019, the deadline for electronic submission of all reports will change to March 2 of each year. It should be noted, however, that compliance with the new anti-retaliation notice and procedural requirements begins the date the amendments take effect.
What is the new anti-retaliation provision? During a public hearing in 2014 that OSHA conducted on the proposed amendment, labor union representatives commented that publication of this data would cause a higher rate of retaliation by employers against employees who report workplace incidents. In response, OSHA added an anti-retaliation provision to the final amendment which requires employers to take the following steps:
- Establish a reasonable procedure for employees to report workplace injuries and illnesses.
- Notify employees of the procedure for reporting workplace injuries and illnesses.
- Notify employees that (a) they have the right to report workplace injuries and illnesses, and (b) employers are prohibited from discriminating or retaliating against employees who make such reports.
- Take measures to ensure that employees who report workplace injuries or illnesses are not retaliated against for doing so.
As stated above, these provisions apply to all employers, not just covered establishments for OSHA reporting purposes.
How is the new anti-retaliation provision different from the anti-retaliation provision already in place? Currently, Section 11(c) of the Occupational Safety and Health Act (the Act) provides protection for employees who report workplace injuries and illnesses. An employee who is retaliated against must file a complaint within 30 days of the retaliatory act. The complaint is then investigated by OSHA’s Whistleblower Protection Program, which is separate from OSHA’s enforcement division. If the complaint has merit, the agency will litigate the case on behalf of the employee.
The new anti-retaliation provision provides an entirely new cause of action for employee. Under the new amendment, an employee may file a complaint with OSHA compliance personnel and the complaint will be investigated by an OSHA Compliance Safety and Health Officer. The compliance officer will make a determination and, on that basis, OSHA could issue a citation that require the offending employer to remove discipline from an employee’s file, pay an employee back pay, or even reinstate an employee.
Covered employers need to be aware of the new reporting and notice.