New OSHA Injury Reporting Rule Raises Concerns

New OSHA Injury Reporting Rule Raises Concerns

The Occupational Safety and Health Administration (OSHA) last month issued a final rule that requires many employers to electronically submit information about workplace injuries and illnesses to the government. Additionally, OSHA intends to post this data on its public website. The rule technically goes into effect on August 10, 2016, with the new data submissions beginning in 2017. Employers operating in state plans are subject to the new rule, as the OSHA-approved state programs must adopt “substantially identical” requirements within six months.

Who’s Affected?

Under the final rule, establishments with 250 or more employees that are currently required to keep OSHA injury and illness records must electronically submit information from the OSHA 300 Logs, the 300A Summaries, and the 301 Injury and Illness Incident Reports to the agency. For these establishments, there is a phase-in process in which the 300A Summaries for 2016 are required to be electronically submitted by July 1, 2017. OSHA Forms 300A, 300 and 301s for 2017 will all be required to be submitted by July 1, 2018.

This new rule also covers those establishments with 20 to 249 employees that are classified in 67 specific industries, which historically have high rates of occupational injury and illness. These businesses also must electronically submit information from their 2016 OSHA 300A Summaries to OSHA by July 1, 2017. Beginning in 2019, the submission deadline will be changed from July 1 to March 2 for the previous year.

The final rule allows OSHA to collect information from employers that are not required to submit information to the agency on a routine basis. These employers would only be required to submit the data requested upon written notification from OSHA.

Moreover, under the new rule, OSHA reemphasizes the requirements for whistleblower protections. Specifically, employers must inform employees of their right to report work-related injuries and illnesses free from retaliation. An employer’s procedures for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting. And, employers must not retaliate against employees for reporting work-related injuries or illnesses.

OSHA in its ruling also took a stance against blanket mandates of post-incident drug testing. The new rule does not ban drug testing of employees, but it does prohibit employers from using drug testing or the threat of it as a form of adverse action against employees who report injuries or illnesses. OSHA does, however, recognize that employers who conduct post-accident testing mandated by federal regulations (e.g., interstate transportation) or per state Workers’ Compensation laws, many of which include “drug-free workplace” incentive programs, are not affected by the new rule.

Reaction to the New Rule

There are concerns from numerous parties regarding various aspects of the new OSHA reporting rule. The business community believes that this new requirement will force companies to publicly reveal confidential business details that had in the past been considered privileged and confidential. It also will give undue access to business processes to competitors, plaintiffs’ lawyers, community activists and union organizers for use against a company. Additionally, many believe it opens the door for unprecedented opportunities for significant citations and penalties. The Risk & Insurance Management Society Inc. in reaction to the ruling stated that inaccurate safety ratings, reporting redundancies and cyber exposures will result from the new rule.

There are several measures employers should take to prepare for OSHA’s new ruling, including:

  1. Determine which establishments will be covered by the new rules;
  2. Review reporting mechanisms to ensure they are formatted for electronic reporting;
  3. Determine whether current injury and illness reporting mechanisms or policies are in compliance with the new rule and make any necessary revisions before Aug. 10, 2016;
  4. Review safety incentive programs against OSHA’s concerns that they may discourage reporting injuries;
  5. Train employees and managers on the injury and illness reporting mechanisms or policies before Aug. 10, 2016; and
  6. Train managers on the importance of not taking adverse action against any employee who has reported an injury or illness without involving legal counsel or human resources.

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