OSHA Issues New Requirements for Electronic Reporting of Workplace Injuries and Illnesses
On May 11, 2016, the Occupational Safety and Health Administration (OSHA) unveiled a final rule requiring electronic reporting of workplace injuries and illnesses, requiring employers to inform workers of their right to access injury and illness data, and prohibiting retaliation against employees for reporting on-the-job injuries and illnesses. The new reporting requirements take effect in January 2017; however, the anti-retaliation provisions take effect August 10, 2016. Employers located in State OSHA Plan states must comply with the new rule, and State OSHA Plans must adopt identical regulations.
Electronic Reporting Requirements. The final rule, which has been in the works since November 2013, does not change employer obligations to maintain OSHA injury and illness logs and what must be reported to OSHA; it simply requires electronic filing with OSHA of such records by employers with 250 or more employees, with an exception for employers with between 20 and 249 employees in “high hazard” industries, such as agriculture, construction, forestry, and manufacturing. These smaller employers will be required to electronically report under the new rule, but only a portion of the data required of larger employers. The reporting requirements will be phased in beginning in 2017:
- Employers with 250 or more employees and smaller employers in “high hazard” industries must electronically submit Form 300A by July 1, 2017;
- Employers with 250 or more employees must electronically submit Forms 300A, 300 and 301 by July 1, 2018; and
- Beginning in 2019, all required information must be electronically submitted by March 2 of the year following the calendar year covered by the required forms (for example, by March 2, 2019 for the forms covering 2018).
OSHA anticipates that a benefit of the new reporting requirement will be to enable it to facilitate more accurate compliance and enforcement efforts, allowing OSHA to focus on employers whose reported data suggests poor performance with regard to workplace health and safety.
OSHA to Post Employer Data by Establishment. OSHA will post the electronically filed injury and illness data on its public website. The postings will be by establishment rather than by employer, thus employers with multiple establishments will be the subject of multiple postings. According to OSHA, a factor driving public disclosure of employer illness and injury data is to incentivize employers to operate a safe and healthy workplace, a concept OSHA refers to as “behavioral economics.” The data set amassed from the new reporting requirements is expected to create the largest workplace injury and illness data set publicly available. By creating the data set, OSHA intends for employers to benchmark their safety and health performance against industry leaders.
New Anti-Retaliation Provisions. The anti-retaliation provisions contained in the new rule apply to all employers, regardless of size, and become effective August 10, 2016, well before the new electronic reporting requirements. Employers are now required to establish a reasonable procedure for reporting workplace-related illnesses and injuries, and such procedures must not discourage reporting by employees. The new rule also clarifies employees’ rights to access data on injuries and illnesses at their workplace, and employers are required to inform their employees about their right to report injuries and illnesses without fear of retaliation. This obligation may be met by posting the OSHA JOB SAFETY AND HEALTH — IT'S THE LAW worker rights poster from April 2015 or later.
What Should Employers Do Now?
Keeping in mind that the new rule: 1) creates new reporting and data posting requirements; 2) prohibits policies that could have the effect of discouraging employees from reporting safety violations or injuries; and 3) prohibits retaliation against employees for exercising their rights, employers should:
- train personnel with reporting responsibilities regarding the electronic reporting requirements as well as the minimum amount of information needed to fulfill those requirements to avoid privacy and other data concerns;
- train managers, supervisors and other personnel with reporting responsibilities on the no retaliation provisions of the rule;
- review current workplace safety policies to assess compliance with the new rule, especially drug testing policies, injury reporting policies and policies that provide for bonuses for no recordable injuries or days worked without injuries; and
- ensure that appropriate OSHA posters are in place.
The full text of the final rule, including the hazardous industries listing, can be viewed here. For specific guidance on conforming your organization’s practices to both the new and existing OSHA requirements, please contact Saul Ewing attorneys Catherine E. Walters (firstname.lastname@example.org) or Nicholas V. Fox (email@example.com).