OSHA reporting rule adds to employer burdens - Norton Rose Fulbright

OSHA reporting rule adds to employer burdens

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Publication May 2016

The Occupational Safety and Health Administration (OSHA) has finalized a new rule, which was first proposed on November 8, 2013.  The new  rule will take effect January 1, 2017, and will require employers to electronically submit  information regarding workplace injuries and illnesses which the Administration will then post on its website for public disclosure.  According to OSHA, the new rule will improve tracking of workplace injuries and illnesses by increasing workplace transparency.    At the same time, the new rule  provides employees with a new cause of action by prohibiting employers from discouraging employees from reporting workplace incidents, and from retaliating against employees who report work-related injuries and illnesses.  Lastly, the new rule requires employers to inform employees of their right to report work-related injuries and illnesses.

Background

OSHA's regulation regarding the recording and reporting of injuries and illnesses at 29 CFR part 1904 requires employers with more than 10 employees to keep records of occupational injuries and illnesses at their establishments.   Employers covered by these rules must record each employee injury or illness occurring at the worksite on an OSHA Form 300, the "Log of Work-Related Injuries and Illnesses."   Employers must also prepare supplementary OSHA Form 301, "Injury and Illness Incident Report," which provides additional details about each case recorded on the OSHA Form 300. At the end of each year, employers are required to prepare a summary report of all injuries and illnesses on the OSHA Form 300A, which is the "Summary of Work-Related Injuries and Illnesses," and post the form in a visible location in the workplace.  While employers are required to prepare these forms, most employers have not been required to submit the forms to OSHA absent a request by the Administration during an onsite inspection or for inclusion in a workplace survey.

In 2012, the Bureau of Labor Statistics reported that an estimated three million workers were injured on the job.  With the 2012 Bureau of Labor Statistics report in mind, OSHA proposed amendments to its regulation regarding the recording and reporting of injuries and illnesses on November 8, 2013.  OSHA reasoned that the amendments would provide employees, employers, the government and researchers with access to data that would in turn encourage early prevention of hazards and result in improved programs to reduce workplace hazards and prevent injuries, illnesses and fatalities.  Following a public meeting held on January 9-10, 2014, wherein concern about retaliation against employees reporting workplace incidents was expressed, OSHA issued a supplement to the proposed amendments that would prohibit employers from taking adverse action against employees for reporting occupational injuries and illnesses.

Finalized new rule

Under the finalized new rule, which will go into effect on January 1, 2017, employers with 250 or more employees must submit to OSHA all records required to be maintained regarding occupational injuries and illnesses occurring at the workplace on an annual basis.  Employers with at least 20 employees, but fewer than 250 employees, in certain designated industries must submit the "Summary of Work-Related Injuries and Illnesses" on an annual basis.  Lastly, covered employers must submit the "Summary of Work-Related Injuries and Illnesses" to OSHA upon notification and request by the Administration.  All of the injury and illness information collected will be posted on OSHA's public website after all employee identifying information has been redacted.

In addition to the new reporting requirements, the finalized new rule requires employers to inform employees of their right to report workplace injuries and illnesses free from retaliation.  Employers are required to implement reasonable reporting procedures that do not deter or discourage employees from reporting workplace incidents resulting in injury or illness.  The new rule also prohibits employers from retaliating against employees for reporting work-related injuries or illnesses.  The new rule does not add or change any definitions of forms or terms within the existing regulation, thus, it does not clarify or define what would be reasonable reporting procedures that do not discourage an employee from reporting work-related injuries or illnesses.

Implications

Despite OSHA's high praise of the new rule and its perceived ability to reduce workplace injuries, it poses a number of concerns for employers who are required to comply with the new reporting and disclosure requirements.  First, although covered employers are currently required to collect injury and illness information, the added submission and public disclosure requirements will require employers to implement procedures for the review and submission of the data that ensure accuracy and the privacy of the employees.  The added public disclosure may in fact have the negative result of employers under reporting work-related injuries and illnesses.  In addition to the creation of new policies and procedures, employers will need to review their current internal reporting policies and procedures to ensure that they are reasonable and do not discourage employees from reporting incidents.  This may be easier said than done, given that OSHA has not provided a standard by which to judge whether a policy is reasonable and does not deter an employee from reporting.  Coupled with the inclusion of a new anti-retaliation provision, employees have a new cause of action against employers which will likely result in increased retaliation claims (In 2015 OSHA reported a 6 percent increase in claims of whistleblower retaliation) and increased litigation.

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