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On May 12, 2016, the Occupational Safety and Health Administration (OSHA) published its final rule on electronic reporting of workplace injuries and illnesses, which directly impacts employer recordkeeping. The revised regulations impose a new obligation that requires many employers to annually submit certain electronic injury and illness data directly to OSHA. This information will then become publicly available.  Such data will be searchable by employer, by type of injury, or by illness.  OSHA’s intention behind the change in this rule is to improve safety for workers across the country, a result OSHA believes will occur by making injury information publicly available. Electronic submission of establishment-specific injury and illness data will enable OSHA to use its enforcement and compliance assistance resources more efficiently.  Data analysis will also improve OSHA’s ability to identify, target, and remove safety and health hazards, with the ultimate goal of preventing workplace injuries, illnesses, and deaths.

Pertinent Changes

Effective January 1, 2017, employers will be required to electronically submit injury and illness data. Employers are already required to record these data on their onsite OSHA injury and illness forms. The new reporting requirements will be phased in over a period of two years.  Establishments that have 250 or more employees in industries covered by the recordkeeping regulation must submit information from their 2016 Form 300A by July 1, 2017.  These same employers will be required to submit information from all 2017 forms (300A, 300 and 301) by July 1, 2018.  Beginning in 2019 and every year thereafter, the information must be submitted by March 2 of that year.  Establishments with 20 to 249 employees in certain high risk industries, such as construction and manufacturing, must submit information from their 2016 Form 300A by July 1 in 2017 and 2018.  Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

The new rule also includes changes to the requirements for directing employees on reporting injuries and illnesses. Additionally, the rule also prohibits employers from discouraging workers from reporting an injury or illness.  Employers are required to inform employees of their right to report work-related injuries and illnesses free from retaliation.  It also incorporates the existing statutory prohibition on retaliation by an employer against an employee for reporting a work-related injury or illness.  Of note, OSHA indicates that employers can be cited for maintaining any programs that may discourage reporting such as “safety incentive programs” that offer rewards to employees for minimal reported injuries or illnesses on the job. These provisions become effective August 10, 2016.

Ultimately, the publication of the injury and illness data will be posted on OSHA’s website. Interested parties will be able to search and download the data.  All personally identifiable information (“PII”) that could be used to identify individual employees will be removed prior to publication. The publication of this information on OSHA’s searchable database will allow the public, including the press, to seek out employers with what appear to be higher than average numbers of injuries and illnesses.  Of particular note to this area of litigation, attorneys would be able to publicly search a specific employer in order to ascertain their injury and illness history.

Concerns of Employers

OSHA’s previous recordkeeping process has always allowed for a continuing opportunity for employers to revise injury and illness records after changes occurred to the reported event.  However, pursuant to the new rules, once the injury and illness data is initially reported and disclosed to OSHA, some hypothesize it may be difficult for employers to revise that information so the revised information would be included within the information made public.  Additionally, there is concern that data may be misinterpreted or misrepresented, with critics pointing out that employer injury and illness records will be available without any explanation of the facts and circumstances of the particular case involved.  There is also some doubt in the industry as to whether a functioning system will be in place within the time parameters specified within the new rules.

What Can Employers Do Now?

Employers should begin the process of training employees on the new rules and when the new rules go into effect.  Injury and illness recordkeeping skills should be focused on, including any retraining that may be necessary of employees with a particular emphasis on protecting personally identifiable information to the extent possible while remaining in compliance with the new requirements.  Employers should review and revise its procedures for communicating the new requirements to employees. Companies should also review all safety incentive programs to ensure they cannot be interpreted as deterring employees from accurately reporting any workplace injury or illness.

Johnson & Bell, Ltd. provides a full range of services available to employers via our Construction Practice Group, as well as our Employment Practice Group, that can assist with the proper review of current procedures and the implementation of new policies that comply with the updated rules from OSHA. For more information on OSHA’s new final rule, see https://www.osha.gov/recordkeeping/finalrule/.