In its stated effort to “nudge” employers into creating safer work environments, the Occupational Safety and Health Administration (“OSHA”) has now issued its new electronic recordkeeping rule (the “final rule”).
The final rule imposes new public disclosure policies and anti-retaliation provisions on employers. This expands OSHA’s publication of data related to workplace injuries and illnesses, and opens the door to public scrutiny and anti-retaliatory risk for employers.
Employers Required to Make Electronic Disclosures
The final rule requires certain employers to make electronic disclosures to OSHA, who in turn will scrub the data for personally identifiable information. OSHA will then publish the data on its website in a searchable format that the public can view.
Under the final rule, employers with 250 or more employees must electronically disclose information from the following recordkeeping forms annually:
(1) Form 300A (Summary of Work-Related Injuries and Illnesses);
(2) Form 300 (Log of Work-Related Injuries and Illnesses); and
(3) Form 301 (Injury and Illness Incident Report).
All other employers will be required to electronically submit information only if they receive a request from OSHA. The only exception is for employers with 20 to 249 employees in designated hazardous industries – they must also disclose information from Form 300A annually.
The new electronic disclosure requirements are being phased in. In the first year, all affected employers will need to submit only Form 300A by July 1, 2017. In the second year, all affected employers will need to submit all required information by July 1, 2018. In every year thereafter, all affected employers will need to submit all required information by March 2.
In the interest of encouraging employees to report work place illnesses and injuries, the new rule imposes additional anti-retaliation provisions on employers that take effect on August 10, 2016. At that time employers must:
– inform employees that they have the right to accurately report work-related injuries and illnesses without employer retaliation or discrimination;
– make employee reporting procedures “reasonable” for work-related injuries and illnesses by not deterring or discouraging reports; and
– refrain from retaliating against employees for making reports of work-related injuries and illnesses.
These obligations are broad so employers must proceed cautiously regarding post-incident activities. For example, OSHA indicates that post-incident blanket drug testing (testing regardless of suspicion of impairment) of employees is retaliatory and is thus prohibited. Though this does not mean that employers can never drug test an employee after an incident, it would appear that such tests are permitted only after an incident when there is a reasonable possibility (i.e., a high likelihood) that drug use contributed to the reporting employee’s incident, and the drug test will accurately identify the impairment caused by the drug. This would seem to restrict the post-injury testing rights that employers have enjoyed for many years under Minnesota’s drug testing law.
The Bottom Line
The final rule imposes additional burdens on employers with its disclosure and anti-retaliation requirements. While OSHA has always required that this data be recorded, the electronic disclosure and the public posting of the data raises serious concerns. Besides the problem of insuring that the data is properly and thoroughly scrubbed, employers now face increased public scrutiny of matters that could be subject to misinterpretation and perhaps improper manipulation.
The phased-in implementation gives employers some time to bring their businesses into compliance. However, given the nuances of these new obligations, employers should begin evaluating their incident reporting procedures, post-incident follow-up procedures, drug testing policies, and anti-retaliation policy right away to be sure that they will pass muster when the rule becomes effective.