Implications of OSHA's New Final Rule on Injury and Illness Reporting

Oct 3, 2016

The Occupational Safety and Health Administration (OSHA) published its final rule revising certain regulations which address the recording and reporting of occupational injuries and illnesses. The primary purposes of this new rule, according to OSHA, are to (a) reduce workplace injuries and illnesses by expanding access to and allowing the use of timely, establishment-specific injury/illness information, and (b) promote complete and accurate reporting of work-related injuries and illnesses by employees by prohibiting employer policies that may deter such reporting.
To accomplish these objectives, the rule changes include:

  1. New requirements mandating that certain employers electronically report injury and illness information to OSHA;
  2. New notice requirements, whereby employers must inform employees of their rights regarding injury and illness reporting;
  3. Clarification regarding employer reporting procedures, providing that employer procedures must be reasonable and not deter or discourage employees from reporting (affecting many employers’ post-incident drug testing policies, safety incentive programs, and prompt-reporting requirement policies); and
  4. An additional enforcement mechanism for OSHA to prevent employers from retaliating against employees who report work-related injuries or illnesses.

Electronic Reporting
Generally, the new rule now requires establishments with 250 or more employees that are currently required to keep OSHA injury/illness records to submit information electronically to OSHA from OSHA Forms 300, 300A and 301. It also requires establishments with 20-249 employees in certain industries with historically high rates of occupational injuries to submit information electronically to OSHA from OSHA Form 300A only.
Both of the above establishments must electronically submit OSHA Form 300A only for the year 2016 by July 1, 2017. The following year, establishments with 250 or more employees must submit all OSHA Forms (i.e., 300A, 300 and 301) by July 1, 2018, and establishments with 20-249 employees in the listed high-risk industries must submit OSHA Form 300A by that date. Beginning in 2018, and for subsequent years, the deadline for electronic submissions for both types of establishments and their respective forms becomes March 2.
The new rule also permits OSHA to require establishments that are not otherwise obligated to submit yearly records to provide information electronically upon OSHA’s direction. OSHA will post the injury and illness data it collects from these electronic submissions on its website after removing personal identifying information.
Employer Reporting Procedures
The new rule seeks to ensure all work-related injuries and illnesses are reported. Changes became effective on August 10, 2016, but OSHA will not begin enforcement until November 1, 2016. Under the changes, employers must establish “a reasonable procedure” that does not deter or discourage a reasonable employee from reporting. According to OSHA, employer policies requiring blanket drug testing for reported incidents are unreasonable because they cause under-reporting. The new rule does not ban post-incident drug testing or require that employers specifically suspect drug use before testing. However, OSHA now requires that policies limit drug testing to incidents (1) where drug use is likely to have contributed to the incident, and (2) for which the drug test can accurately identify impairment caused by drug use. OSHA provided examples of incidents that it believes would be inappropriate for drug testing, including: an employee who reports a bee sting, a repetitive strain injury, and an injury caused by a lack of machine guarding or a machine or tool malfunction.
OSHA concerns regarding under-reporting also extend to certain employer safety incentive programs (e.g., bonuses based on absence or low numbers of safety issues) and rigid prompt-reporting policies. OSHA believes some safety incentive programs are unreasonable because they may contribute to under-reporting by encouraging employees not to report injuries and illnesses because they may be penalized by not receiving individual or group safety incentives if they do. Likewise, OSHA believes that rigid prompt-reporting schemes are unreasonable because they may discourage employees from reporting slowly-developing injuries or illnesses and/or may impose discipline for untimely reporting.
New Anti-Retaliation Protections
Pursuant to the new rule, employers must inform their employees that (1) they have the right to report work-related injuries and illnesses, and (2) they cannot be discharged or in any manner discriminated against for reporting work-related injuries or illnesses.
The new rule also adds a greater enforcement mechanism for OSHA. OSHA can now also issue citations for retaliation on its own-without a complaint having to be initiated by an employee. OSHA believes this change will reduce employees’ fear of reprisal for reporting work-related injuries or illnesses. As with employer reporting procedures, this change became effective August 10, 2016, but OSHA will not begin enforcement until November 1, 2016.
Action Steps
Given the above changes and the upcoming dates of enforcement and effectiveness, we recommend that you consider the following actions:

  • Review policies and procedures for reporting work-related injuries and illnesses and ensure they include notice to employees of (1) their right to report and (2) assurance against retaliation for reporting; and
  • Review post-incident drug testing policies, prompt-reporting requirements, and safety incentive programs to ensure they are not overly broad and do not deter reporting.

The labor and employment attorneys of Bose McKinney & Evans are available to answer your questions and provide guidance as needed to comply with this far-reaching new law.