The Occupational Safety and Health Administration (OSHA) has issued its final rule to improve tracking of workplace injury and illness data. The new rule, which generally takes effect on January 1, 2017, changes prior employer reporting procedures by requiring certain employers to electronically submit occupational injury and illness data to OSHA. Prior to the January 1, 2017, effective date, there are provisions that become effective on August 10, 2016, as noted below.
It should be noted that the new rule does not change an employers’ existing obligation to collect, maintain and certify injury/illness records. But it does require some employers to electronically submit such records, as detailed below.
The effective date for the rule, as adopted by state plans, may be different in each state plan jurisdiction. However, OSHA requires each state jurisdiction to adopt substantially identical provisions within six months of the publication of the final rule.
Analysis and Public Disclosure
Because the data will be submitted in electronic form directly to OSHA, the process is expected to improve the agency’s ability to more promptly and effectively analyze workplace injury/illness trends, respond to statistically significant indicators, and enable OSHA to more efficiently engage its compliance and enforcement activities.
Beyond such analysis, OSHA has indicated its intent to publicly disclose some of the data collected on its website. The agency believes that doing so may be another way to encourage some employers to improve the level of occupational health and safety in their facilities. OSHA has noted that interested parties in such public disclosure would include employers, employees, employee representatives (such as union or other representatives) and researchers. In response to concerns about personally identifiable information (such as employee names, health care provider names and addresses) being publicly disclosed, OSHA has stated that it has effective safeguards in place to prevent disclosure of such information.
Which Employers Must Submit Information Electronically?
Establishments with 250 or more employees that are subject to OSHA's recordkeeping regulation must electronically submit to OSHA certain information from the Log of Work-Related Injuries and Illnesses (OSHA Form 300), the Summary of Work-Related Injuries and Illnesses (OSHA Form 300A), and the Injury and Illness Incident Report (OSHA Form 301). For employers in this category, there is an electronic submission deadline of July 1, 2017, for form 300A. Also, by July 1, 2018, employers in this category must electronically submit forms 300A, 300 and 301. Beginning in 2019, the employer electronic submission deadline will change from July 1 to March 2.
Establishments with 20-249 employees in certain high-risk industries must electronically submit to OSHA information from the Summary of Work-Related Injuries and Illnesses (OSHA Form 300A). High-risk industries include (but are not limited to) construction (NAICS 23), manufacturing (NAICS 31-33), a wide variety of trucking and transportation industries, warehousing/storage (NAICS 4931), certain health care employers and hospitals, and commercial/industrial repair and maintenance employers. For employers in this category, there is a submission deadline of July 1, 2017, for form 300A. For 2018, the deadline for employers in this size category to submit form 300A is July 1, 2018. Beginning in 2019, the employer submission deadline will change from July 1 to March 2. A list of regulated employers in this size category is available on the OSHA website at “Recordkeeping: NAICS Codes for Electronic Submission.”
Establishments with fewer than 20 employees at all times during the year do not have to routinely submit information electronically to OSHA.
For purposes of evaluating the number of employees at an establishment, OSHA requires employers to count full-time, part-time, seasonal and temporary workers.
How to Submit Information to OSHA Electronically
OSHA is currently working on a secure portal/website for the electronic submission of information. We understand that the website will also feature web forms for direct data entry and instructions for other electronic means of submission such as file uploads. Finally, there may even be a means to submit data from a mobile electronic device.
Beyond the electronic reporting and public disclosure points of the new rule, the rule also provides information in the whistleblower/anti-retaliation area. The Occupational Safety and Health Act (OSHAct), like many other pieces of federal legislation, contains explicit provisions prohibiting retaliation for reporting workplace safety concerns and issues. The new rule reinforces the coverage of the OSHAct’s anti-retaliation provisions over employee reporting of workplace injuries/illnesses. The anti-retaliation provisions and posting requirements become effective on August 10, 2016.
The rule also notes OSHA’s intent to review certain employer procedures that may have the effect (even unintended) of discouraging employee reporting of injuries. We have had several inquiries from employers about safety incentive programs that provide bonuses or prizes for injury-free periods of time or with respect to post-incident drug testing. With respect to such post-incident testing, it should be noted that the new rule does not prohibit post-incident drug testing if there is reasonable cause to believe that drug-related impairment may have contributed to the incident (as long as the testing is performed at a time and in such manner as to reveal evidence of any such alleged impairment). However, it does prohibit the use of drug testing (or the threat of drug testing) as a form of retaliation against employees who report occupational injuries/illnesses. Among the issues that we would consider as being important here is whether the employer conducts testing in “near miss,” “property damage only” or other situations where there is no injury/illness to report. OSHA has explicitly pointed out that where employers conduct drug testing in order to comply with federal or state laws/regulations, the new rule would not prohibit such testing.
Finally, the new rule requires that employers’ OSHA poster contain express anti-retaliation language with respect to employee reporting of workplace injuries/illnesses. If employers are using the OSHA “It’s the Law” poster that was published by OSHA (April, 2015, or later versions), that poster does contain such language. To determine whether an employer is using a compliant poster, see “OSHA’s Free Workplace Poster.”
Additional information about the new rule and related guidance can be found at “OSHA’s Fact Sheet: Final Rule to Improve Tracking of Workplace Injuries and Illnesses.”
In preparation for the reporting actions required under the new rule, employers should promptly check their OSHA poster (and anti-retaliation policies) at all places of employment to ensure consistency with the rule’s anti-retaliation provisions. Further, in advance of OSHA’s review of the injury/illness data, employers may wish to review their current logs and incident reports to determine whether discernable trends, patterns and/or statistically significant issues are evident. One benchmark might be industry-specific injury/illness rates in comparison with individual employer history. By reviewing such data now, employers may be in position to employ effective responsive actions (or at least confirm compliant and good safety/health status) in advance of any electronic reporting obligations.