OSHA’s Revised Recordkeeping Rule Takes Place July 1, 2017

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On May 11, 2016, the Occupational Safety and Health administration (OSHA) finally issued its much anticipated final rule on recordkeeping and reporting. ACCA provided a regulatory review of this final rule last week, but I would like to chime in on some of the legal implications.

As we reported, the new rule requires employers in certain industries to electronically submit information regarding workplace injuries and illnesses to OSHA. OSHA will post the electronically submitted information, according to the final rule, on its public website. The rule will not go into effect until July 1, 2017, so our impacted members have over a year to prepare.

The final rule also mandates updated requirements on how employers must inform employees to report work-related injuries and illnesses to their employers. In sum, the rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation. It makes clear that the employer must provide “reasonable procedures” for reporting work-related injuries and illnesses that do not deter employees from reporting them. (Although what constitutes “reasonable procedures” is still not clear and open for interpretation at this point by OSHA.)

As previously conveyed, the new rule governs some very specific workplaces regarding electronic reporting to the OSHA website:

• Employers with 250+ employees must submit the information from OSHA forms 300, 300A and 301 electronically on an annual basis; and
• Employers with 20-249 employees that are in a “high hazard” industry, such as manufacturing and construction, furniture stores, waste collection and nursing care facilities, to submit the information from OSHA form 300A electronically on an annual basis.

(Note that the new rule does not alter or reduce an employer’s obligation to complete and retain work-related illness and injury records under OSHA’s current recording-keeping requirements.)

Although not prohibited explicitly, OSHA’s final rule makes a number of sweeping statements regarding the permissibility of disciplinary programs, alcohol and drug testing, and safety incentive programs, suggesting that many of these procedures will be heavily scrutinized by the agency and possibly found invalid. Disciplinary programs that result in discipline of an employee for failing to immediately report an injury or illness that is work-related and “blanket” drug and alcohol testing policies will specifically be considered to violate the rule because OSHA believes these programs have the potential to discourage employee reporting. Safety incentive programs will be scrutinized equally as closely for the same reasoning by OSHA.

Additionally, the anti-retaliation provisions provide an entirely new cause of action for employees. Rather than filing a Section 11(c) complaint, an employee may now file a complaint directly with OSHA personnel. An OSHA Compliance Safety and Health Officer will investigate and determine whether the employer violated the anti-retaliation provisions. Citations are much more easily come by under these new provisions. And, to abate the violation, OSHA can now require employers to remove discipline from an employee’s file, reinstate the employee, or pay the employee back pay.

OSHA has stated it intends to post establishment-specific work-related injury and illness data it collects on its website, but will not, however, post any information that could be used to identify individual employees.

This raises questions that will require further clarity by OSHA on handling employee privacy concerns and how OSHA will redact private employee information to prevent personably identifiable information before posting the data on the publicly-accessible website.

Legal experts anticipate that the publicity can potentially be quite costly to employers. The negative publicity from disclosure of workplace-related injuries and illnesses may cause increased scrutiny from the public, employees, unions, state workplace safety agencies, and can easily turn into legal fees defending OSHA enforcement actions, claims, and lawsuits filed by employees and unions.

To start preparing now, employers should:

• Promptly review workplace safety policies and reporting procedures to ensure that such policies inform employees of their right to report work-related illnesses and injuries free from retaliation and do not discourage or deter employees from reporting.
• Ensure that appropriate and current OSHA posters are in place.
• Train personnel with responsibilities for completing and maintaining the impacted OSHA logs regarding the rule’s electronic reporting requirements, and caution all managers with reporting responsibilities against any retaliation practices.

Finally, employers should also consider having multiple layers of internal review and legal scrutiny by outside counsel before electronically submitting OSHA Reports to provide protection against any data publically posted and further repercussions. And, ACCA members should proceed with extreme caution or consult outside counsel when implementing an adverse employment action against an employee shortly after an employee reports an injury or illness.

Better safe, than sorry.

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Posted In: Government, Legal