On May 11, 2016, the Occupational Safety and Health Administration (“OSHA”) announced that it has finalized a new recordkeeping and reporting rule for certain employers. At its core, the new rule amounts to what many employers are sure to view as OSHA’s attempt to shame them publically. That is, the new rule requires covered employers to submit information from their OSHA Forms 300, 300A, and/or 301 (depending on employer size), which the agency will then post on its public website.
OSHA states that the new rule is expected to take effect on August 10, 2016, but the new data submissions and public disclosure elements will not be phased in until 2017. The new rule will not alter employers’ obligations regarding the completion or retention of records. But employers covered by the recordkeeping regulations and employing 250 or more individuals must electronically submit their Forms 300A to OSHA by July 1, 2017, and their Forms 300, 300A, and 301 by July 1, 2018. Employers, in certain industries, with 20-249 employees will only have to submit their Forms 300A to OSHA on July 1, 2017, and July 1, 2018, respectively. In 2019, the reporting date will be changed from July 1 to March 2.
In addition to these requirements, OSHA’s new rule requires employers to inform their employees of their right to report workplace injuries and illnesses without retaliation. Further, employers’ policies must be “reasonable” and not deter employees from reporting. Employers should therefore carefully review their written policies and communications to employees to ensure they are compliant with the new rule, or else seek legal advice to that end.
OSHA believes that “behavioral science” supports the notion that these new measures will “nudge” employers to promote worker safety. OSHA compares the new rule to requirements in the restaurant industry, stating that “[j]ust as public disclosure of their kitchen’s sanitary conditions encourages restaurant owners to improve food safety, OSHA expects the public disclosure of work injury data” to have a similar effect on worker safety. OSHA anticipates that job seekers, customers, and investors will benefit from demonstrably “safe and well-managed facilities.”
Employers take a different view. OSHA’s new measures can be construed as an attempt to shame them publically, rather than to promote safe work places. Employers will, and should, be concerned that the public disclosure of this information infringes on their rights or entitlements to protect confidential business information. Indeed, there may even be privilege issues associated with the disclosure of such information in the cases where a reported incident is subject to an ongoing investigation. This could negatively impact employers in subsequent litigation, where opposing parties attempt to use the disclosed information adversely against the employer. Employers involved in litigation in the coming years should consult with legal counsel regarding compliance in light of these concerns.
The final rule is available here.