Employers will face a number of new obligations under OSHA’s revised recordkeeping rules as of August 10, 2016. These include (1) a new anti-retaliation provision; (2) new employee notification requirements; and (3) a new requirement to implement and maintain a “reasonable” injury and illness reporting procedure. For employers required to record injuries and illnesses under OSHA’s Recordkeeping Standard, the new rules may require some immediate action.
New Anti-Retaliation Provision.
The new regulation prohibits retaliation against an employee for reporting a work-related injury or illness. Although OSHA already prohibits retaliation against employees for participating in agency proceedings, currently the employee must initiate a complaint within 30 days of the alleged retaliatory action. Under the new rules, OSHA can issue a Citation, with penalties and abatement requirements, on its own initiative. Thus, rather than simply defending against an employee complaint, the employer will be contesting a Citation issued by a government agency.
“Reasonable Procedures” to Report Work-Related Injuries and Illnesses.
The new rules also require employers to implement “reasonable procedures” for the reporting of work-related injuries and illnesses. There is no specific definition of “reasonable,” but the procedures must not deter or discourage employees from reporting injuries or illnesses. For example, it must not impose unreasonable deadlines for reporting.
New Notification Requirements.
The new rules also require employers to provide specific notice to their employees of each of the following: (1) the procedure for reporting an injury or illness; (2) the employee’s right to report an injury or illness; and (3) the prohibition against retaliation for such reports.
Electronic Submission of Injury and Illness Records.
Starting on January 1, 2017, certain employers that are not otherwise exempt from the recordkeeping rules will be required to submit their annual OSHA injury and illness records (e.g., OSHA 300, 300A, 301) electronically. The electronic submission requirement will apply to: (1) large employers (establishments with 250 or more employees); (2) “high risk” employers (establishments with 20-249 employees in certain “high-risk” industries listed in Appendix A to the rule (e.g., manufacturing, hospitals, nursing care facilities, construction, etc.)); and (3) any employer that receives “notification” from OSHA.
Previously, OSHA obtained injury and illness records only if it asked for them during inspections or as part of its annual sampling of certain employers. Under the new program, we can expect to see more inspections focused on those companies that report high incident rates.
OSHA Will Provide Public Access to Injury and Illness Records.
Perhaps the most significant change to the regulation is that OSHA plans to make Injury and Illness Reports publicly available. Employees’ personal information will be redacted to protect their privacy, but all other data will be viewable—and searchable—on OSHA’s website. This new requirement is consistent with OSHA’s expressly stated policy of “regulation by shaming” – OSHA believes that the public disclosure of unfavorable injury and illness data to “the public, including investors and job seekers” will incentivize employers to improve worker safety.
What to Do Before August 10, 2016?
First, make sure your company procedure for reporting workplace injuries and illnesses is reasonable. If you have no policy, it is time to create one.
Second, complete the employee notification requirement (i.e., inform employees about your reporting procedure and their right to report without fear of retaliation).
Third, train your managers on the new anti-retaliation protections, and make sure these protections are explained in employee handbooks and similar materials.
Finally, get started on a plan for the electronic reporting of injury and illness records in 2017 – which is only six months away.
A copy of the Final Rule implementing these changes is available at https://www.gpo.gov/fdsys/pkg/FR-2016-05-12/pdf/2016-10443.pdf.
If you have questions about any of the above, please contact us.
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