Employers should note the August 10, 2016, deadline for compliance with the anti-retaliation provisions of the Occupational Safety and Health Administration’s (OSHA) new electronic recordkeeping and reporting rules. Other sections of the new rule, including those which require qualifying employers to submit injury and illness data electronically to OSHA, go into effect on January 1, 2017.

Reasonable Requirement for Employee Reporting.

To encourage employees to report
injuries and illnesses without fear of retaliation, the new rule includes the following three provisions designed “to promote complete and accurate reporting of work-related injuries and illnesses:”

1. Employers must inform employees of their right to report work-related injuries and illnesses free from employer retaliation. Per OSHA, employers can accomplish this by posting OSHA’s worker rights poster (from April 2015 or later).

2. By adding language to the existing rule, OSHA clarified that reporting procedures must be reasonable and that any procedure that would deter or discourage reporting is not reasonable. In the preamble to the new rule, OSHA offered an example of a practice it would deem not reasonable: an employee reported work-related neck and shoulder pain a week after symptoms first appeared and the employer issued a final warning for failing to report the condition promptly.

According to OSHA:

“[t]his policy was not reasonable because it did not allow for reporting within a reasonable time after the employee realized that he or she had suffered a work-related injury…The final rule will have an important enforcement effect for the minority of employers who do not currently have reasonable reporting procedures.”

OSHA also sends a clear message that it considers blanket post-injury drug testing to be a form of adverse action that can discourage reporting.

3. The final anti-retaliation provision adds to the existing anti-discrimination prohibition in section 11(c) of OSHA’s governing statute and allows inspectors to cite an employer for retaliation and require abatement even if no employee has filed a section 11(c) complaint. Under section 11(c), an employer may not discharge, retaliate, or discriminate against any employee “because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to this Act or has testified or is about to testify in any such proceeding or because of the exercise by such employee on behalf of himself or others of any right afforded by this Act.”  The new rule at § 1904.36 notes that section 11(c) prohibits retaliation for injury and illness reporting and provides investigators with “an additional enforcement tool.”

New Employer Electronic Reporting Requirements

The new rule also requires qualifying employers to submit injury and illness data electronically to OSHA. This electronic submission requirements do not add to or change any employer’s obligation to complete and retain injury and illness records, but OSHA said that it plans to post some of the information on its public access website in the hopes that the public disclosure will encourage employers to improve workplace safety and provide valuable information to stakeholders and the general public. The new electronic submission requirement does not provide any exemption for companies that may not be capable of electronic submissions.

Notable Deadlines

The new reporting rule will be phased in over several years.

• August 10, 2016 — employers must ensure compliance with the anti-retaliation requirements [link to 29 C.F.R. § 1904.35 and 1904.36].
• July 1, 2017 — required establishments (employers with 250 or more employees or with 20-249 employees in specific industries) must electronically submit information from their Form 300A.
• July 1, 2018 — required establishments must submit all their recordkeeping forms (Forms 300, 300A, and 301).
• March 2, 2019 – New electronic submission deadline going forward.

Employers need to take implementation seriously as OSHA recently increased the maximum penalties for citations by more than 75 percent. See [Link to “OSHA Penalties are About to Get a Lot More Expensive” blog].

Employers need to ensure they are in compliance of these key requirements by the deadlines.