On May 12, 2016, OSHA issued its highly anticipated revisions to its rule on recordkeeping and reporting occupational injuries and illnesses. The revisions transform the existing rule on recordkeeping in several ways:

  • The new rule requires employers to involve employees "and their representatives" in recordkeeping by informing employees about how to report a work-related injury, that they have a right to report work-related injuries and illnesses, and that they will not be subject to discrimination for reporting such injuries.
  • The new rule requires employers to establish a "reasonable procedure" for reporting injuries and illnesses accurately and promptly. The new rule does not specifically define what a reasonable procedure is, other than a note that a rule is not reasonable "if it would deter or discourage a reasonable employee from accurately reporting an injury or illness."
  • The new rule purports to provide a new enforcement mechanism against employers that discriminate against employees for reporting an injury by adding that, in addition to existing protection in the Act, such employers will be subject to citations from OSHA. This is a significant expansion because complaints of retaliation are subject to a 30-day limitations period, whereas citations are subject to a six-month limitations period. In other words, under the new rule, OSHA may attempt to cite employers for alleged retaliation, even though the employees did not themselves assert discrimination claims. OSHA's ability to obtain relief on behalf of individuals who did not file complaints will likely be a hotly litigated issue.
  • The new rule provides for publication of employer injury and illness records. It requires establishments with more than 20 employees to electronically submit information about work-related injuries and illnesses. The obligations vary by the size of the establishment. For establishments with 250 or more employees, information from the OSHA 300 (Injury/Illness Log), OSHA 300A (Injury/Illness Summary), and OSHA 301(Injury/Illness Incident Report) must be submitted annually beginning in 2017. For employers in certain specified industries with more than 20 but fewer than 250 employees at an establishment, information from the OSHA 300A must be submitted electronically to OSHA. The new rule allows for public dissemination, with certain information, such as employee names, deleted. Previously, such records were not publicly available.

The new rule potentially calls into question employer safety policies regarding discipline, drug and alcohol testing, and safety incentive programs. Surprisingly, perhaps, one of the issues likely to be contentious relates to the requirement that injury reporting procedures be reasonable and not discourage employees from reporting injuries. According to OSHA, its use of the word "reasonable" is intended to enable employers to flexibly tailor their programs to the needs of their workplaces without prescribing specific procedures. Although OSHA agrees that employers have a legitimate interest in maintaining accurate records and ensuring that employees are reporting genuine injuries and illnesses promptly, OSHA disagrees that a desire to ensure accurate recordkeeping, prevent fraud, and ensure prompt treatment justifies rigid rules providing for disciplining employees for failing to report injuries immediately.

OSHA contends that the new discrimination provisions in the rule do not add substantive obligations for employers, but acknowledges that its new rule will have "an important enforcement effect," because the final rule purports to allow OSHA to issue citations even if no employee has filed a retaliation complaint and long after the time for doing so has expired. What is not clear, moreover, is exactly what discrimination is. According to OSHA, discrimination for reporting injuries includes obvious examples such as termination, pay reductions, and undesirable reassignments, but also includes "any other adverse action that 'could well dissuade' a reasonable employee from reporting a work-related injury or illness." Few employers are likely to take comfort in this guidance or OSHA's assurance that the final rule prohibits only retaliatory adverse action "simply because [an employee] reported a work-related injury or illness."

Also of some significance is the potential impact of the rule on post-accident drug testing policies. Although OSHA posits that the final rule does not prohibit drug testing, it does interpret its rule to restrict post-accident drug testing to situations in which "employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use." According to OSHA, post-accident drug testing in situations where the injury or illness is not reasonably the result of drug use could be discriminatory. In a webinar held on the day the rule was released, Assistant Secretary Dr. David Michaels suggested that drug testing policies established and administered in accordance with applicable law should not be viewed as retaliatory. This statement is arguably broader than the language of the rule and appears to reflect OSHA's contention that the rule is not intended to significantly affect drug testing programs, except to the extent such programs are applied to require drug testing in situations where there is no legitimate or rational basis to think the employee contributed to the injury or was at fault. In other words, if the injury cannot be reasonably tied to the employee's behavior or fault, post-incident drug testing could present the threat of a citation under the new rule.

Finally, the revised OSHA rule is likely to affect safety incentive programs. In 2012 OSHA issued an interpretation letter describing its skepticism about certain types of safety incentives because of their supposed chill on injury reporting. The new rule effectively codifies that suspicion and exposes employers to citation because of the perception of inspectors that a safety incentive could, theoretically, dissuade an employee from reporting an injury.

OSHA contends that its new rule does not impose new, substantive obligations on employers. OSHA's contention is not without its skeptics, and that characterization, along with the new obligations imposed on employers, is likely to lead to challenges to the rule. In the interim, employers should begin to look at their injury and illness reporting procedures, and reexamine post-accident drug testing and safety incentive programs, before OSHA takes them public.