The Occupational Safety and Health Administration has released “Improve Tracking of Workplace Injuries and Illnesses,” its long-anticipated final rule revising its Recording and Reporting Occupational Injuries and Illnesses regulation. The final rule has two main elements: (1) requiring electronic submission of employer occupational injury and illness data to OSHA, and (2) facilitating employee reporting of work-related injuries or illnesses by mandating accessible procedures and barring employers from setting policies that (in OSHA’s view) inhibit employees from reporting injuries and illnesses or punish them for doing so. OSHA has provided a “resource page” regarding the final rule.

Background

In November 2013, OSHA proposed adding electronic recordkeeping requirements to its Recording and Reporting Occupational Injuries and Illnesses regulation (“Part 1904”) to direct that certain employers electronically submit to OSHA injury and illness recordkeeping information on a quarterly or annual basis. Additionally, the proposal would create a searchable website of employers’ injury and illness records that is available to the general public.

In August 2014, OSHA also proposed prohibiting adverse action (e.g., termination, reduction in pay, or reassignment to a less desirable position) against employees for reporting injuries and illnesses.

Electronic Submission

The final rule requires that employers electronically submit Part 1904 recordkeeping records. Depending on their size and industry:

• Employers with at least 250 employees (including part-time, seasonal, or temporary workers) in each establishment must submit data from their Forms 300 (log of occupational injuries and illnesses), 300A (annual summary), and 301 (incident reports with further information for entries on the logs) to OSHA on an annual basis.

• Employers with at least 20 employees, but fewer than 250, in certain identified high-hazard industries must electronically submit data from their 300A form on an annual basis.

In addition, employers notified by OSHA to electronically submit their Forms 300, 300A (annual summary), and 301 (incident reports) to OSHA must do so.

OSHA will post the data from employer submissions on a website accessible to the public. The regulatory agency states, “OSHA does not intend to post any information on the Web site that could be used to identify individual employees.”

Employer Injury Reporting Policies

The final rule requires employers to develop employee injury and illness reporting requirements that meet certain criteria.

Employers must inform employees of the following:

• Procedures for promptly and accurately reporting work-related injuries and illnesses. According to the final rule, a procedure is not reasonable if it would deter or discourage employees from reporting injuries or illnesses.

• Employees have the right to report work-related injuries and illnesses.

• Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses.

OSHA had suggested in its proposed rule that safety incentive policies and post-accident drug testing could be considered practices that would discourage employees from reporting work-related injuries or illnesses. Therefore, it said, these could be discriminating practices. In the final rule OSHA explains:

[T]he final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.

Regarding incentive programs, OSHA states:

Employee incentive programs take many forms. An employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employee might be awarded a bonus if no one from the team is injured over some period of time. Such program might be well-intentioned efforts by employers to encourage their works to use safe practices. However, if the programs are not structured carefully, they have the potential to discourage reporting of work-related injuries and illnesses without improving workplace safety…. [T]o the extent incentive programs cause under-reporting, they can result in under-recording of injuries and illnesses, which may lead to employer liability for inaccurate recordkeeping. The latter concern is what is being addressed by this final rule’s prohibition on employers using incentive programs in a way that impairs accurate recordkeeping.

Effective Dates

The requirements to inform employees they have a right to report a work-related injury and they cannot be retaliated against for reporting work-related injuries or illnesses will be effective on August 10, 2016, 90 days after publication in the Federal Register.

The requirements relating to electronic submission of Part 1904 recordkeeping forms will become effective on January 1, 2017. Establishments with at least 250 employees must submit information from their 2016 Form 300A by July 1, 2017. Starting in 2018, these same employers must submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019, and every year thereafter, the information must be submitted by March 2.

Establishments with at least 20 employees, but fewer than 250, in the designated industries must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019, and every year thereafter, the information must be submitted by March 2.

According to OSHA, states that operate under a state OSHA plan will have to adopt within six months substantially similar requirements as under the final rule.