Last week, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a final rule aimed at updating the way it collects data and preventing workplace injuries and illnesses. The final rule can be broken down into two parts: (1) Electronic Reporting and Data Collection; and (2) and Employee Involvement and Retaliation, each of which we discuss below.
Summary of the Final Rule
- Electronic Reporting and Data Collection
Starting next year, employer workplace injury data will be freely available for the public to see through OSHA’s website. The final rule revises 29 C.F.R. §1904.41 and requires certain employers currently subject to OSHA workplace safety reporting requirements to now submit their annual reports electronically.
Specifically, beginning January 1, 2017, covered employers with 250 to more employees must electronically submit OSHA Form 300A Summary of Workplace Injuries and Illnesses, OSHA Form 300 Log of Work-Related Injuries and Illnesses, and OSHA Form 301 Injury and Illness Incident Report. Also starting on January 1, 2017, covered employers in certain “high-risk industries” with 20 or more employees but less than 250 employees must electronically submit OSHA Form 300A.
At a later date, OSHA will provide employers with a secure website to electronically submit their annual reports. Employers must submit their 2016 OSHA Forms by July 1, 2017 and their 2017 OSHA Forms by July 1, 2018. Beginning in 2019, all annual OSHA Forms will be due by March 2 of the following year.
OSHA believes that electronic data collection – and public disclosure of employers’ workplace injuries – will help employers, employees, the government, and researchers better “identify and mitigate workplace hazards and thereby prevent worker injuries and illness.” OSHA claims it is relying on “behavioral economics” in the hopes that employers will take more care in preventing injuries if their dirty laundry is publicly available for all to see.
- Employee Involvement and Retaliation
The final rule also revises 29 C.F.R. §§1904.35-.36 and requires employers to encourage employees to report workplace injuries and illnesses. Effective August 10, 2016, employers currently required to report workplace injuries and illnesses must: (1) inform employees of their right to report such injuries and illnesses; (2) inform employees that the employer is prohibited from retaliating against any employee who makes a report; (3) establish a reasonable procedure for employees to make reports and inform employees of the procedure; and (4) provide employees and their representatives with access to non-redacted illness and injury records.
Potential Concerns for Employers
- Unwanted (and potentially costly) publicity: Beyond the (likely, negative) publicity that disclosure of workplace injuries will cause, employers should also be concerned about whether this new electronic reporting rule will make it easier to target employers who experience a large number of workplace injuries and illnesses. OSHA confirms this employer concern, stating “[t]he final rule will allow OSHA to more effectively target its enforcement resources to establishments with high rates or numbers of workplace injuries and illnesses.” Once the reports become publicly available employers should anticipate increased scrutiny of their safety practices from the public, employees, unions, state workplace safety agencies, and OSHA. Scrutiny can easily turn into legal fees defending OSHA enforcement actions and claims and lawsuits filed by employees and unions. Employers may want to consider having several layers of internal review before electronically submitting their OSHA Reports to ensure that the “powers that be” are satisfied with what will be posted publicly about the company and prepared for any repercussions.
- Lack of clarity as to what is a “reasonable procedure” for employee reporting: The final rule only explains what an unreasonable procedure is: “A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” 29 C.F.R. 1904.35(b). Many commenters to the proposed rule highlighted this clear ambiguity, but OSHA dismissed their concerns, stating its final rule “is sufficiently clear to notify employers of their obligations under the rule while giving employers flexibility to design policies that make sense for their workplaces.” How flexible an employer’s procedures can be remains to be seen and will undoubtedly vary amongst jurisdictions.
- Employee privacy concerns: Most, if not all, employers keep workplace injury and illness records private and accessible by only a few designated individuals to ensure that employee medical information will not be disclosed. The final rule requiring electronic submission may require companies to increase the pool of individuals who can access these records, pre-redaction, for the purpose of data entry of the reports. OSHA simply suggests, “[i]f such responsibility is given to office staff, it would need to be accompanied with training regarding protecting sensitive information and privacy”, but then goes on to say that “specialized training is not required before handling [Personally Identifiable Information].” These suggestions by OSHA will not help a company defend itself should sensitive data about employees land in unauthorized hands. Before these rules become effective, companies should decide what positions will be responsible for data entry of OSHA Reports and electronic submission to OSHA, such as HR Specialists who already have received training on handling confidential employee information.
- How will OSHA redact private employee information: OSHA says it “does not intend to post personally identifiable information on the Web site” and claims it will use its “existing software to remove personally identifiable information before posting data on the publicly-accessible Web site” and will conduct a “special review” of case information that presents privacy concerns. But there is no way to ensure that OSHA will not mistakenly post private employee information for public consumption. All employers and their employees can do is informally contact OSHA (a list of officials will be listed somewhere on OSHA’s website) to request correction of already posted data.