The Occupational Safety and Health Administration (OSHA) has issued a new rule that requires nonexempt employers, by August 10, 2016, to implement procedures for employees to report occupational injuries and illnesses and policies that expressly forbid retaliation against employees who make such reports. The rule also requires that by July 1, 2017, certain employers must submit employee injury and illness logs electronically to OSHA for public publication on OSHA’s website. The electronic submission of employee injury and illness data applies to all nonexempt employers that employ at least 250 workers at an establishment and to certain high-risk industry employers that employ more than 20 employees. The reporting procedure and anti-retaliation policy applies to all nonexempt employers.
OSHA currently requires all employers not expressly exempted from the OSHA recordkeeping requirements to record work-related employee injury and illnesses on an OSHA Form 300. OSHA Form 300 contains the employee’s name, job title, date of injury/illness, location where injury/illness occurred, description and immediate cause of the injury/illness, and the result of the injury/illness (e.g., medical treatment, lost work days, restricted work days, job transfer). Nonexempt employers also must complete OSHA Form 301 for each entry on the OSHA Form 300. OSHA Form 301 provides a more detailed description of the circumstances surrounding the injury or illness, including identifying the treating physician or health care professional and the facility where the treatment occurred. In addition, annually nonexempt employers must prepare OSHA Form 300A which summarizes the employee injuries and illnesses from the OSHA Form 300 for the prior calendar year. Employers must post the Form 300A from February 1 to April 30 at each establishment. OSHA’s new rule will require nonexempt employers that employ at least 250 individuals at a single establishment to electronically submit the OSHA Form 300, OSHA Form 301, and OSHA Form 300A to OSHA for public posting on OSHA’s website. Employers in certain high-risk industries that employ 20 or more employees at an establishment will be required to submit their OSHA Form 300A electronically for public posting on OSHA’s website.
The public employee injury/illness database will be searchable so that interested parties can compare individual employer’s injury/illness rates. OSHA will use the data to target and investigate those employers that it believes have high employee injury/illness rates. Although OSHA will not collect from the OSHA Forms individual employees’ names and addresses, the identities of the employees’ treating physicians or healthcare professionals, or the treating locations, because OSHA will use software to scrub personal identifying information from the remainder of the OSHA Forms, it is entirely possible that some employee identifying information will slip through.
OSHA’s new rule also requires each nonexempt employer to establish and implement express anti-retaliation and injury/illness reporting policies that do not deter employees from reporting occupational injuries and illnesses. The rule gives OSHA a new tool to investigate and cite employers for potential retaliatory practices on its own initiative, without waiting for an employee complaint. In the preamble to the final rule, OSHA made explicit that it will use the rule to target those employer reward or incentive programs designed to foster low occupational injury rates that may discourage employees from reporting work-related injuries. Of course, what programs could “discourage” employees from reporting occupational injuries is open to debate.
The reporting procedure and anti-retaliation aspects of the new rule take effect for all nonexempt employers on August 10, 2016. By July 1, 2017, each nonexempt employer with establishments of more than 250 employees and in certain designated high-risk industries with establishments of more than 20 employees must submit electronically its 2016 OSHA Form 300A to OSHA. By July 1, 2018, each nonexempt employer with establishments of more than 250 employees must submit electronically its 2017 OSHA Form 300, OSHA Form 301 and OSHA Form 300A to OSHA, and employers in certain designated high-risk industries with establishments of more than 20 employees must submit electronically their 2017 OSHA Forms 300A to OSHA. Annually thereafter, employers under the rule must submit electronically to OSHA their required OSHA Forms from the prior calendar year on or before March 2. States that operate their own OSHA-approved Occupational Safety and Health Plans must adopt an identical electronic reporting and anti-retaliation rule within six months.