On May 11, 2016, the Occupational Safety and Health Administration (OSHA) issued a final recordkeeping and reporting rule that requires employers to electronically submit their injury and illness reports. OSHA believes that making injury information publicly available will “nudge” employers to focus on safety. Not only will this information be publicly disclosed on OSHA’s website, OSHA plans to use the data to help improve allocation of compliance assistance and enforcement resources that enable the agency to “identify, target and remove” safety and health hazards.

OSHA’s final rule also creates a new remedy for OSHA to pursue where it believes an employer either retaliates against employees for reporting work-related injuries or illnesses or through a policy or procedure deters them from doing so. OSHA may penalize employers for violating the provisions of its new rule.

The final rule revises OSHA’s Recording and Reporting Occupational Injuries and Illness regulation, 29 C.F.R. §1904.

Electronic Submission and Public Disclosure

In general, OSHA requires employers in most industries with 10 or more employees to keep records of work-related injuries and illnesses at their establishments through OSHA Forms 300 (Log of Work-Related Injuries and Illnesses), 301 (Injury and Illness Incident Report) and 300A (Summary of Work-Related Injuries and Illnesses). While the final rule does not alter these basic requirements, it will now mandate electronic submission of this information to OSHA. Establishments with 250 employees or more must submit all three forms electronically on an annual basis, and those with 20 to 249 employees in specified industries must submit Form 300A annually. While the list of specified industries is lengthy, it includes broad categories such as construction, manufacturing, utilities and agriculture. OSHA expects covered employers to use the submitted data to benchmark their safety and health performance against industry leaders and improve their safety programs.

Although the final rule becomes effective on August 10, 2016, data submission requirements will be phased in beginning in 2017 as follows:

The final rule also permits OSHA to send written notification requesting data from employers who are not required to submit the information to the agency on a regular basis.

New Anti-Retaliation Remedy

The final rule also creates a new anti-retaliation remedy, granting OSHA the ability to cite and fine employers for violating the rule’s new anti-retaliation provisions effective August 10, 2016. OSHA claims that the final rule encourages employees to provide complete and accurate reporting of work-related injuries and illnesses by implementing the following three provisions to protect employees from retaliation:

  • Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation.
  • An employer’s procedure for reporting work-related injuries or illnesses must be reasonable and must not deter or discourage employees from reporting.
  • Employers are prohibited from retaliating against employees for reporting work-related injuries or illnesses.

OSHA can cite and fine an employer for violating any of these provisions.

Previously, employees who believed their employer had discriminated or retaliated against them for exercising their rights under the Occupational Safety and Health Act (29 U.S.C. §660(c)(1)) could file a complaint under the Section 11(c) whistleblower provision within 30 days of the alleged discrimination or retaliation. OSHA would then investigate and, if OSHA found the complaint substantiated, would order a remedy and/or pursue the matter in federal court. While this avenue for a remedy still exists, under 29 C.F.R. §1904.35, OSHA now may investigate an employer for retaliation against an employee without the employee ever filing a whistleblower complaint under Section 11(c). Since OSHA’s penalties for citations will significantly increase effective August 1, 2016, employers should be particularly cautious when treading this new water.

Within six months, State Plan states must adopt requirements that are substantially identical to those in the final rule. For data collection, states may choose to allow employers in their state to use the federal OSHA data collection website to meet the new reporting obligations or may provide their own data collection sites.

How Should an Employer Respond?

To ensure compliance with the new rule, an employer should:

  • Be aware of whether and which form(s) it will be required to submit electronically on an annual basis, based on the establishment’s size and industry.
  • Review and update, as appropriate, current reporting procedures, policies, and incentive programs to ensure they do not deter or discourage employees from reporting injuries or illnesses.
  • Review any drug testing policy to ensure that it does not unreasonably discourage employees from reporting a work-related injury or illness. While OSHA acknowledges on its website that the new rule does not prohibit employee drug testing, it contends that the rule prohibits employers from using drug testing, or the threat of drug testing, as a form of retaliation against employees who report injuries or illnesses.