In November 2013, OSHA published a notice of proposed rulemaking, “Improve Tracking of Workplace Injuries and Illnesses,” to add electronic recordkeeping requirements that would require certain employers to electronically submit to OSHA injury and illness recordkeeping information on a quarterly and/or annual basis.  Additionally, the proposed rule would establish a public searchable website where OSHA would make employers’ injury and illness records available to the general public.

One of the many objections to this rule by employers during the comment period was that making such information publically available undermined the current “no-fault” recordkeeping system, which sought to encourage accurate reporting of injuries and illnesses rather than determine fault for the injury or illness. Many opponents of the proposed rule were concerned that the rule essentially labeled employers as “good” or “bad” based on their injury and illness data, data which is impacted by many variables and may not reflect the robust nature of the employer’s safety and health program.  Concerns were raised that the proposed rule would discourage employees and/or employers from reporting injuries and illnesses because such information would be electronically available and searchable to the public.

In an alleged effort to apparently address those concerns, on August 14, 2014, OSHA issued a supplemental notice of proposed rulemaking.  OSHA is now considering amending the proposed rule to include provisions that would

(1) require that employers inform their employees of their right to report injuries and illnesses; (2) require that any injury and illness reporting requirements established by the employer be reasonable and not unduly burdensome; and (3) prohibit employers from taking adverse [termination, reduction in pay, reassignment to less desirable position] action against employees for reporting injuries and illnesses.

As a basis for this rule, OSHA claims “it would provide OSHA with additional enforcement tools to promote the accuracy and integrity of the injury and illness records employers are required to keep under Part 1904. . . .  Under the additions to the proposed rule under consideration, OSHA would be able to cite an employer for taking adverse action against an employee for reporting an injury and illness, even if the employee did not file a complaint.”

As the supplemental proposed rule readily acknowledges, what OSHA is proposing is already required either directly or implicitly by existing standards and the whistleblower provisions under section 11(c) of the OSH Act.  Specifically, employers are already required to establish policies and procedures for employees to report injuries and illnesses under section 1904.35.  And, implicit in this requirement is that such procedures must be reasonable and not unduly burdensome.  As OSHA acknowledged in the supplemental notice, “OSHA believes that onerous and unreasonable reporting requirements are already in effect prohibited by [section 1904.35] (i.e., one has not created a ‘way to report’ injuries if the ‘way’ is too difficult to use). . . .”

Additionally, employers are already prevented from disciplining employees or taking adverse action against employees who report injuries or illnesses.  “[M]uch of the primary conduct that would be prohibited by the new provision is likely already proscribed by 11(c).” However, the ability of OSHA to cite an employer without an employee complaint is a significant departure from the language under section 11(c) and it would circumvent the current requirement that OSHA bring cases on behalf of employees in U.S. district court rather than issue citations.

Stakeholders have until October 14, 2014 to submit written comments. A copy of the Federal Register Notice can be found here.

Nickole Winnett