The Occupational Safety and Health Administration (OSHA) recently implemented new regulations that will impact covered employers beginning on August 10, 2016. Specifically, these new regulations will require electronic submission of injury and illness records and contain anti-retaliation provisions that will impact legal obligations and business operations. Below is a summary of (1) the new requirements, and (2) important compliance and legal issues, which we recommend you evaluate in light of the new regulations.
Overview of New OSHA Reporting and Anti-Retaliation Provisions
- Electronic submission of injury and illness data. Establishments with 250 or more employees will be required to electronically submit certain injury data from their Form 300A (annual summary form), Form 300 (the log), and Form 301 (incident report) to OSHA on an annual basis beginning in 2017 for 2016 calendar year reporting. Establishments with 20 to 249 employees, which fall within a prescribed list of NAICS codes attached to the rule (link to full text), must electronically file only information from the Form 300A annually. Upon receipt, OSHA intends to post portions of these records and make them available to the public at osha.gov. OSHA has represented that no employee personal identifying information will be made public. The deadline for submitting calendar year 2016 information is July 1, 2017.
- Anti-retaliation protections and obligations to educate workers. OSHA is requiring that employers inform employees that they have a right to report work-related injuries and illnesses free from retaliation. Further, OSHA is requiring that employer policies and procedures for reporting work-related injuries and illness be reasonable and not deter or discourage employees from reporting. The preamble to the rule states that what is “reasonable” is to be determined using an objective “reasonable person” standard.
- OSHA legal authority to issue citations. The new rules expressly prohibit employers from retaliating against employees for reporting work-related injuries or illnesses. This new standard is indeed consistent with the anti-discrimination provisions already contained in the whistleblower provisions in the OSH Act, Section 11(c). However, what is different is that the new rules authorize OSHA to issue a citation to an employer for a violation of the anti-retaliation provisions even where an employee has not complained about the employer’s actions.
- State laws may still be more stringent. The new regulations do not preempt state laws, but states have been charged with enacting substantially similar rules. As with other laws, OSHA has expressly opined that states may enact more stringent requirements.
Important Issues You Should Consider
- “Shaming” Provisions: Publication of injury and illness data has the potential to influence investors, consumers, contractors, or prospective employees. Among other things, OSHA’s comments to the rule expressly announce the public nature of the reporting are expected to have an impact on companies’ investors, consumers, contractors, and prospective employees (among others), because these groups are likely to better support companies with strong track records. Publication of this information also creates the opportunity for negative impacts to a company’s reputation and companies subject to the rule should consider and prepare for any such potential occurrence. Employers shouldreview your Injury/Illness Reporting Policies to evaluate how illnesses and injuries are reported (by whom, if there is standard narrative language, etc.) and consider retraining employees who manage OSHA Injury and Illness Records to ensure accurate reporting of information while also using risk-mitigating language in illness and injury reports.
- Effect on safety incentive programs. For years, OSHA has been critical of employer safety programs which reward employees for low injury rates, such as, for example, a pizza party or other prizes or awards following 90 days without a recordable injury or illness. OSHA’s stated concern is that policies which reward employees in these types of instances incentivize employees not to report injuries, which then leads to under-reporting of injuries and illness. Significantly, under the new rule OSHA may choose to issue a citation to a company for implementing a policy which may discourage reporting. We recommend that you evaluate your policies and programs in light of these new enforcement risks.
- Review of drug testing policies strongly recommended. OSHA specifically identifies an employer’s implementation of a drug testing policy as a potential retaliatory act, particularly where an employer has a blanket, mandatory post-incident testing policy which results in all employees being tested following an accident. OSHA is concerned that drug testing may be performed following incidents where the use of drugs or alcohol are unlikely to have any relationship to the injury or illness (e.g., musculoskeletal disorders), and that an employee may not report an injury for fear of being subject to testing. Given the myriad of different state and federal laws which relate to drug and alcohol testing, including state workers compensation premium reduction programs, we recommend that you review existing policies with your legal counsel and implement any changes before August 10, 2016.
- Remember – OSHA penalties to increase substantially by August 1, 2016. OSHA will be adjusting its civil penalties for the first time in 26 years to account for inflation, and it has authority to continue doing so on an annual basis based on the Consumer Price Index. The increase is expected to be significant (as much as 80%): the maximum for an “other than serious” or “serious” citation could increase to $12,000 from $7,000, and willful or repeat citations could jump to $126,000 from $70,000. The final rule setting forth those amounts is expected by July 1, 2016, and the adjusted penalties will come into effect no later than August 1, 2016.
- Links to new rule. The Final Rule is available at 92 FR 29624 (May 12, 2016) (as corrected 81 FR 31854 (May 20, 2016)), and it is available through the GPO website (here and here).