OSHA recently issued a Notice of Proposed Rulemaking that proposes to rescind the requirement for establishments with 250 or more employees to electronically submit their OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report) information to OSHA on an annual basis.^[1] Under the proposed rule, employers subject to electronic reporting (those in the industries that OSHA has designated as “high risk” and establishments with 250 or more employees) will still be required to submit the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses) information to OSHA on an annual basis.  OSHA’s stated rationale for this proposal is that it is an effort to protect “sensitive personal information from potential disclosure under the Freedom of Information Act.”^[1] 83 Fed. Reg. 36494 (Jul. 30, 2018).

In the Notice of Proposed Rulemaking, OSHA also proposes that employers be required to submit their Employer Identification Number (EIN) in connection with the submittal of their Form 300A.  According to OSHA, the submission of EINs would allow the Bureau of Labor Statistics and OSHA to coordinate their data collection efforts and help reduce duplicative reporting.  

While it was anticipated that OSHA would rescind the requirement for electronic submission of Forms 300 and 301, it was unclear whether OSHA would amend or rescind the electronic reporting rule’s anti-retaliation provisions.  The anti-retaliation provisions are intended to prevent employers from discouraging the reporting of work-related injuries and illnesses, and have implications that extend to employer procedures for reporting work-related injuries and illnesses, disciplinary policies, safety incentive programs, and drug testing programs.  OSHA did not address those provisions in the Notice of Proposed Rulemaking, and as a result, they will continue to stay in effect unless the pending legal challenges to those provisions are successful or OSHA decides to take further action. 

OSHA is accepting comments on its proposed rule until September 28, and will then proceed toward finalizing the rule.

Our previous news alert outlining the electronic reporting rule and anti-retaliation provisions follows below:

In May 2016, OSHA issued a final rule requiring the electronic reporting of certain injury and illness records and issuing new anti-retaliation provisions.  Following multiple delays, the anti-retaliation provisions became effective on December 1, 2016 and the first phase-in deadline for the electronic reporting requirements was set for December 15, 2017. 

The implications for OSHA’s final rule on affected employers are significant.  Their customers, competitors, and the general public will have quick access to details of their injury and illness history.  Potential investors will have new tools available to evaluate employers’ risk and potential liability.  State and local governments will likely consider the published illness and injury rates when reviewing bids for large construction contracts. OSHA’s anti-retaliation rules are intended to encourage employers to report workplace injuries despite the fact that the records will be published online and accessible by the public.

Additionally, the final rule may increase employers’ exposure to criminal penalties under 18 U.S.C. § 1001 for false statements to the government.  In December 2015, the Department of Justice and the Department of Labor jointly issued a memo indicating that the agencies would “increase the frequency and effectiveness of criminal prosecutions of worker endangerment violations” with a “renewed” commitment.  As part of this initiative, DOJ attorneys may begin to carefully examine the injury and illness disclosures required by OSHA’s final rule.

Background

For many years, OSHA has required most employers to keep records of their work-related injuries and illnesses, and to report fatalities and certain serious injuries to OSHA.  These regulations appear in 29 C.F.R. Part 1904.  The reporting rules were expanded in 2014 to include reporting of all in-patient hospitalizations, amputations, and losses of an eye that occur within specified periods after work-related incidents.^[i]

OSHA issued a proposed rule in November 2013 to add requirements for electronic submission to OSHA of injury and illness information employers are already required to keep.^[ii] The preamble to that proposed rule indicated that the agency planned to post this data on a public website.  After comments regarding whether employers might under-report injuries to avoid this publicity, OSHA issued a supplemental notice in August 2014 seeking comment on whether to prohibit employers from taking adverse action against employees for reporting injuries and illnesses.^[iii]  OSHA published the final rule in May 2016.^[iv]

Key Provisions of OSHA’s Final Rule

Anti-Retaliation Provisions

OSHA has consistently sought to promote employer safety incentive policies that encourage workplace injury reporting.^[v]  For example, according to OSHA, a policy that rewards workers for recommending safety improvements throughout a facility may improve workplace safety without discouraging reporting.[vi]  Other policies, however, in OSHA's view may purposefully or inadvertently deter workplace injury reporting.  For example, workers who report an OSHA-recordable injury might be excluded from periodic prize drawings.^[vii]  Or, an employer might provide a cash bonus to a team of employees if no one on the team is injured for a certain amount of time.

Anticipating that employers may discourage reporting by employees of their occupational injuries and illnesses in light of the new posting provision, OSHA has amended the recordkeeping regulations with certain anti-retaliation provisions. While the rest of the final rule became effective January 1, 2017 (with phased-in deadlines to follow), the three requirements below became effective on December 1, 2016:

• Require employers to inform employees of their right to report work-related injuries and illnesses;

• Clarify existing requirements that an employer’s procedure for reporting work-related injuries and illnesses be reasonable and not deter or discourage employees from reporting; and

• Incorporate the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.

Accordingly, employers may want to review their employee policies to verify that any incentive policies aimed at minimizing workplace injuries and illnesses avoid inadvertently encouraging underreporting.

Electronic Submission of Injury and Illness Data

OSHA’s regulations require employers with more than 10 employees in most industries to maintain records of work injuries and illnesses at their facilities.  OSHA’s final rule amends these regulations to require electronic submission of the records employers are required to keep.

Establishments with 250 or more employees must electronically submit their Part 1904 injury and illness recordkeeping forms (Forms 300, 300A, and 301) to OSHA on an annual basis. Establishments in certain industries with 20 or more employees, but less than 250, must electronically submit information from their Part 1904 annual summary (Form 300A) on an annual basis. Employers also must electronically submit information from Part 1904 forms to OSHA upon notification.

OSHA plans to post the company-specific injury and illness data it collects on its public website.  OSHA does not intend to post information that would identify individual employees.  Furthermore, the published data will be partially restricted by the Freedom of Information Act and certain provisions within Part 1904.  For example, OSHA will use FOIA Exemptions 6 and 7(c) to withhold certain personally identifiable information, and § 1904.29(b)(6) requires employers to withhold employee names for injuries and illnesses classified as “privacy concern cases.”

Implementation Schedule

OSHA originally planned to phase in the data collection system as follows:

• Establishments with 250 or more employees in covered industries – Submit information from their 2016 Form 300A by July 1, 2017. These employers must submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. In 2019, and every following year, the information must be submitted by March 2.

• Establishments with 20-249 employees in certain high-risk industries – Submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. In 2019, and every following year, the information must be submitted by March 2.

However, as noted above, OSHA delayed the July 1, 2017 phase-in deadline to December 15, 2017.

DOJ Worker Endangerment Initiative

DOJ and DOL have teamed up to increase enforcement and criminal prosecution of worker endangerment violations. One driver for this new initiative is an interest in more severe punishments for safety violations, since worker safety violations are misdemeanors, not felonies under the Occupational Safety and Health Act.^[viii]  Prosecutors are likely to take a broader view of workplace investigations to encompass worker safety violations alongside environmental crimes and traditional felonies such as false statements.  The initiative may also seek to use the workplace safety crimes as “hooks” for charges with greater criminal exposure.

In light of OSHA’s final rule, employers should be particularly aware of 18 U.S.C. § 1001 for false statements to the government.  The False Statements Act generally prohibits willfully and knowingly making fraudulent or false statements, or concealing information, in “any matter within the jurisdiction” of the federal government. The breadth of 18 U.S.C. § 1001 is wide, and its potential application to OSHA’s final rule has important consequences.

Employers must be diligent about accurately and truthfully reporting workplace injury and illness data consistent with OSHA’s final rule.  Company employees charged with reporting the information should be carefully trained on the reporting requirements and should quickly revise any inadvertently incorrect submissions. Records maintained on-site should match records submitted to OSHA.

_{[i] See Beveridge & Diamond, OSHA Issues New Rule on Injury and Illness Reporting and Recordkeeping (Sept. 25, 2014).}

_{[ii] 78 Fed. Reg. 67254 (Nov. 8, 2013).}

_{[iii] 79 Fed. Reg. 47605 (Aug. 14, 2014).}

_{[iv] 81 Fed. Reg. 29624 (May 12, 2016).}

_{[v] See OSHA Memorandum, Employer Safety Incentive and Disincentive Policies and Practices (Mar. 12, 2012).}

_{[vi] 81 Fed. Reg. at 29673.}

_{[vii] Id.}

_{[viii] 29 U.S.C. § 666(e).}