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Safety First! New Regulations Require Public Reporting of Injury/Illness Reports to OSHA and Expand OSHA's Anti-Retaliation Enforcement Tools

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Last week, the Occupational Safety and Health Administration ("OSHA") issued its highly anticipated updated final rule on tracking workplace injuries and illnesses. The new rule requires covered employers to electronically submit workplace injury and illness reports to OSHA beginning, for larger employers, on July 1, 2017. It also clarifies and expands OSHA's antiretaliation regulations for employees who report workplace injuries and illnesses—including a new provision that permits OSHA to investigate and cite employers for taking adverse action against employees who make reports to OSHA.

Publication of Establishment-Specific Injury and Illness Reports Based on Electronically Submitted Information

Currently, OSHA requires most employers to keep detailed records of occupational injuries and illnesses, but typically accesses these records only when it inspects an employer's workplace. As is familiar to many employers, OSHA requires covered employers to record each workplace injury and illness in a log (using OSHA form 300, or an equivalent), prepare a supplementary report on each injury and illness (using OSHA form 301, or an equivalent), and assemble an annual summary of workplace injuries and illnesses (using OSHA form 300A). Employers must post the annual summary in a visible location.

Under the new rule, employers will soon be required to electronically submit these reports to OSHA:

  • Covered employers with 250 or more employees per establishment will be required to electronically submit their OSHA 300, 300A, and 301 forms on an annual basis;
  • Employers in designated higher-risk industries with 20 to 249 employees per establishment will be required to electronically submit their OSHA 300A forms on an annual basis; and
  • Upon notification by OSHA, employers will be required to electronically submit their OSHA 300, 300A, and 301 forms.

Although the new rule does not alter covered employers' existing obligations to complete, retain, and certify injury and illness records, OSHA intends to publish establishment-specific injury and illness reports on a publicly-accessible website based on employers' electronic submissions. OSHA will phase in the new electronic submission requirements throughout 2017 and 2018.

Expansion of OSHA's Enforcement Authority of Employer Retaliation

Under OSHA's current rules, employers are prohibited from discharging or otherwise discriminating against employees for reporting workplace injuries or illnesses. An employee who believes that he or she has been subject to discrimination or retaliation for reporting an injury or illness can file a complaint with OSHA within 30 days of the alleged retaliation, and OSHA may investigate the complaint. If OSHA concludes that there is reasonable cause to believe that the employee has been retaliated against for reporting, OSHA may file suit in the United States District Court on behalf of the employee. OSHA may seek all appropriate relief from the employer, including reinstatement and back pay.

Some things may change under the antiretaliation provisions of the new rule, which becomes effective August 10, 2016. While the new rule incorporates the existing statutory prohibition on discrimination and retaliation, it includes two additional provisions that OSHA believes will promote the complete and accurate reporting of workplace injuries and illnesses:

  • Employers must inform employees of their right to be free from retaliation for reporting workplace injuries and illnesses. (According to OSHA's fact sheet on the new rule, employers can satisfy this requirement by posting OSHA's current Job Safety and Health — It's the Law poster in a visible location at the workplace.)
  • Employers' procedures for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting. Specifically, employers' reporting procedures must account for injuries and illnesses that build up over time, have latency periods, or do not initially appear serious enough to be recordable.

But perhaps more significantly, the new rule "provides OSHA with additional enforcement tools to promote the accuracy and integrity of the injury and illness records employers are required to keep."  Under the new rule, OSHA will be empowered to cite an employer for taking adverse action against an employee for reporting an injury or illness and to require abatement, whether or not the employee files a complaint with OSHA. OSHA has indicated that its goal will be to eliminate the source of the retaliation and make whole any employee subjected to retaliation.

Now Is the Time to Review Workplace Safety Policies and Practices

OSHA's final rule attempts, in the agency's words, "to modernize injury data collection to better inform workers, employers, the public and OSHA about workplace hazards."  Employers are prudent to heed OSHA's invigorated focus on accurate and complete reporting of workplace injuries and illnesses and on protecting employees who report from retaliation.

In particular, OSHA has indicated that employers' disciplinary policies, postaccident drug-testing practices, and safety incentive programs should be reviewed for compliance with the new rule—and, if necessary, revised. Though employers are not prohibited from disciplining employees for violating legitimate safety rules, employers' disciplinary policies should be reviewed to ensure that employees cannot be subject to adverse action for reporting an injury or illness. And employers' postaccident drug-testing practices may violate the new rule if they subject employees to drug testing when it is very unlikely that an injury or illness was caused by drug use, or if the testing methods identify prior drug use without identifying whether an employee was impaired by drug use—though employers are not prohibited from conducting drug tests to comply with the requirements of state or federal law or regulation. Even safety incentive programs should be reassessed. Though OSHA has not categorically prohibited incentive programs, programs that discourage reporting of workplace injuries and illnesses likely violate the new rule.

And while employers' reporting obligations have not substantively changed, employers may find that the increased public visibility of workplace injury and illness records, along with OSHA's expanded enforcement authority, merits an in-depth review of the employers' workplace safety policies, procedures, and practices.