Why it matters

Three years in the making, the Occupational Health and Safety Administration (OSHA) finalized a new rule mandating the electronic submission of injury and illness data from employers. The rules will take effect August 10 with phased-in data submissions beginning in 2017.

The procedure for reporting must be "reasonable," the rule dictated, employers must inform employees of their right to report work-related injuries and illnesses without retaliation, and the obligation to complete and retain injury and illness records remains in force. OSHA intends to publicize the data on its website (after removing all personally identifiable information) to create the "largest publicly available data set on work injuries and illnesses." The final rules also established a new avenue for employees to claim their employer retaliated against them for reporting a work-related injury or illness.

Detailed discussion

After several years, the Occupational Health and Safety Administration (OSHA) has published a final rule requiring covered employers to electronically submit reports of employee illness or injury.

"Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace," Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels said in a statement. "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. Access to injury data will also help OSHA better target our compliance assistance and enforcement resources at establishments where workers are at greatest risk, and enable 'big data' researchers to apply their skills to making workplaces safer."

Specifically, the amendments to 29 C.F.R. Parts 1902 and 1904 mandate that each establishment with 250 or more workers will now submit OSHA 300 Logs, 301 Forms, and 300A summaries each year by uploading them into an OSHA database. The agency defined "establishment" as a single physical location where work is performed, although for businesses where work is performed at multiple locations—such as a construction company—the main office or a branch office will constitute the establishment.

Employers with 20 to 249 employees in specified industries (listed in Appendix A, such as construction, manufacturing, utilities, and agriculture) will be required to submit OSHA 300A summaries electronically.

The electronic system will allow OSHA to compile what it touted as the "largest publicly available data set on work injuries and illnesses, enabling researchers to better study injury causation, identify new workplace safety hazards before they become widespread, and evaluate the effectiveness of injury and illness prevention activities." Once the forms are submitted, the agency will redact any personally identifiable information before posting it to its website. Employers, workers, and the public will then be able to access the data.

While the rule takes effect in August, electronic submissions will be phased in beginning July 1, 2017. The rule did not do away with an employer's obligation to complete and retain injury and illness records.

The interplay between the final rule and state analogues remains unclear. Pursuant to the final rule, "states that operate their own job safety and health programs, also called OSHA State Plan states, must adopt requirements that are substantially identical to the requirement in this rule within six months after publication of the final rule."

Given the timing of the federal law taking effect and the first deadline for electronic submissions, it is unlikely states will require any similar type of reporting before OSHA.

In addition to the electronic submissions requirements, the final rule addressed concerns about retaliation against employees who report work-related illness or injury. Employers must establish a "reasonable" procedure for workers to report an illness or injury, notify employees about the procedure, and inform them of their right to make such reports. A procedure will not be considered reasonable by OSHA if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.

The final rule prohibits retaliation against employees for reporting work-related injuries and illness (regardless of whether the OSHA's electronic submission requirement applies) and created a new avenue for employees to allege such retaliation. Workers will now be able to file a complaint with OSHA compliance personnel, who will investigate and determine if the employer violated the anti-retaliation provisions.

If OSHA determines a violation occurred, the agency will issue a citation that could require a range of employer actions from reinstating a worker to providing back pay to removing discipline from an employee's file. Employers may challenge an alleged violation with an appeals process to an administrative law judge and the Occupational Safety and Health Review Commission.

To read the DOL's final rule, click here.