On May 11, 2016, the Occupational Safety and Health Administration (OSHA) issued a final rule intended to inform workers, OSHA and the public about workplace hazards that occur at an employer’s worksite. Under the new rule, employers are now required to submit workplace safety information electronically and are prohibited from retaliating against workers who report such incidents. The Department of Labor has stated that the information will be used to create “the largest publicly available data set on work injuries and illnesses.”

Section 8 of the Occupational Safety and Health Act of 1970 (OSH Act) gives the Secretary of Labor broad powers to require covered employers to maintain and provide access to occupational safety data, but this information has traditionally been private. Under current rules, certain employers must record workplace safety data in the form of an injury and illness report for each case (Form 301), a log of the cases (Form 300) and an annual summary of work-related injuries and illnesses (Form 300A). The new rule, which takes effect January 1, 2017, will now require such information to be electronically submitted. Employers with more than 250 workers must electronically submit all three forms to OSHA each quarter, while companies with 20 or more workers in high-injury industries, such as construction and manufacturing, must now submit Form 300A to the agency annually. The agency will make the information public on its website, allowing interested parties the ability to search and download the data.

The new regulations also adopt certain anti-retaliation provisions that become effective August 10, 2016, and apply to all employers. Section 11(c) of the OSH Act already prohibits any person from discriminating against an employee who reports a workplace injury, but OSHA cannot act until an employee files a complaint. Significantly, in a departure from established procedure, the new rules permit OSHA to cite an employer for retaliation even if the employee did not file a complaint. Employers also must inform employees of their right to freely report work-related injuries.

Employers that use safety incentive programs at their workplace to reward workers for adhering to safety rules should be wary of the new retaliatory rules. OSHA has stated that incentive programs are prohibited under the OSH Act if they discourage employees from reporting injuries by denying a benefit to employees who report such injuries. The new final rule requires that programs be “structured in such a way as to encourage safety in the workplace without discouraging the reporting of injuries and illnesses.” As such, the specifics of an incentive program must be considered to determine whether it would violate the new rules. As an example, OSHA notes in the final rule that an employer may violate the anti-retaliatory provisions if it disqualifies an employee for a monetary bonus or similar benefit because an employee reports a work-related injury.

Companies and interest groups are concerned about the implications of the new rules. The U.S. Chamber of Commerce has criticized the new rule, noting that “instead of improving workplace safety, [the new rule] will only create a new filing requirement that will lead to sensitive employer data being published without context or explanation.” Because the data is being published without context and does not tell the whole story, it is not necessarily a good indicator of workplace safety. Moreover, it is anticipated that unions will use the new publicly available information to target companies that have numerous work-related injuries when mounting organizing campaigns. Competitive companies are also likely to use the new data when trying to secure a bid on a project, by pointing to the poor safety records of other businesses submitting bids. Employers should be cautious under the new rules of having potentially unlawful company policies that deter workplace safety reporting, such as drug testing policies. To be proper under the new rules, drug policies should limit post-incident 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. A policy that permits drug tests for employees who report an injury caused by a lack of machine guarding, for example, is likely to deter reporting without contributing to workplace safety, and is unlawful.

Employers should consult a team well versed in OSHA law to help prepare their companies for the new reporting requirements and anti-retaliation provisions. Such a team can assist in evaluating company policies such as worker incentive programs or drug testing programs that may conflict with the new rules. Moreover, businesses should also be ready to address potential organizing drives mounted by unions that the organizers base on worker safety data.