On May 12, 2016, the Occupational Safety and Health Administration (“OSHA”) published its long-awaited electronic recordkeeping rule (“final rule”). The final rule creates numerous new recordkeeping obligations and additional administrative burdens for hospitality and other employers. Many employers will now be required to submit injury and illness information to OSHA electronically. OSHA will then attempt to remove identifying information from the records and publish them on a searchable database on its website. The final rule also includes several new anti-retaliation provisions that provide new protections for employees reporting work-related injuries and illnesses.

The Basics

The final rule requires certain employers to electronically submit to OSHA the injury and illness information that they are already required to keep under existing regulations. Specifically, establishments with 250 or more employees that are currently required to keep injury and illness records must electronically submit information from OSHA Forms 300 (Log of Work-Related Injuries and Illnesses), 300A (Summary of Work-Related Injuries and Illnesses), and 301 (Injury and Incident Report). Establishments with 20 or more employees but fewer than 250 that conduct work in industries that OSHA considers highly hazardous must electronically submit information from Form 300A annually.

Importantly, hospitality is included in the list of industries that OSHA deemed highly hazardous. Entities within the hospitality industry subject to the requirements of the final rule include a laundry list of facilities, such as hotels, motels, casino hotels, hotel management services, health spas that offer accommodations, and tourist and motor lodges, just to name a few.

The final rule will be phased in. New anti-retaliation protections included in the final rule will become effective by August 10, 2016. All establishments required to submit electronic records must submit their annual Form 300A to OSHA by July 1, 2017. On July 1, 2018, establishments with 250 or more employees must submit Forms 300A, 300, and 301. Establishments deemed highly hazardous with 20–249 employees will continue to submit only Form 300A. Beginning in 2019, the submission deadline will change from July 1 to March 2. OSHA State Plans must adopt rules that are substantially identical to the final rule within six months of its publication.

Hospitality Employers’ Obligations to Employees

Hospitality employers must involve their employees in the injury and illness recordkeeping process by informing them of how to report a work-related injury or illness within the establishment and the procedure used by the employer to report such incidents to OSHA. Employers must establish “a reasonable procedure” for employees to report work-related injuries and illnesses promptly and accurately—that is, the procedure cannot have the effect of discouraging employees from reporting a workplace injury or illness. Accordingly, an employer must also inform employees that (1) they have a right to report work-related injuries and illnesses, (2) they will not be discharged or in any manner discriminated against for reporting work-related injuries and illnesses, and (3) the employer is legally prohibited from discharging employees or discriminating against them in any way for reporting a work-related injury or illness.

Hospitality Employers’ New Challenges and Concerns

The final rule presents numerous challenges and concerns for hospitality employers. First, OSHA has stated that it will use the information that it collects as employers comply with the rule to identify new bad actors—if an employer has a higher-than-average injury and illness rate, the chances of its establishment being visited by compliance officers will dramatically increase.

Second, although hospitality employers are required to submit the recordkeeping forms to OSHA on a secure web-based application, if the application is hacked, the personal information of countless employees could be exposed before OSHA has the opportunity to remove such information from the records. Once the forms are received by OSHA, the agency will “scrub” any personal identifiers from them and place them on a publicly available searchable database on OSHA’s website. This step also opens the door to an inadvertent disclosure of private employee information.

Third, the public exposure of work-related injury and illness information gives OSHA another avenue with which to continue its campaign of shaming employers that it believes are bad actors before they are able to defend themselves, as the press will have access to this information.

Fourth, the public dissemination of work-related injury and illness information will aid unions in targeting businesses for unionization—that is, unions will have unfettered access to the lists of businesses that have higher injury and illness rates and may, therefore, find employees more interested in becoming unionized.

Last, the final rule gives OSHA a new weapon against employers—broad discretion to issue citations if the agency considers any part of an employer’s procedures for reporting a work-related injury and illness to be “unreasonable.”

What Hospitality Employers Should Do Now

• Train employees on the requirements of the final rule and when they go into effect.
• Ensure that employees understand that they will not be retaliated against for reporting work-related injuries and illnesses and are, in fact, encouraged to report them.
• Retrain the employee(s) responsible for injury and illness recordkeeping on the basics of recordkeeping and provide thorough training on the final rule with an emphasis on protecting personally identifiable information to the maximum extent possible while remaining in compliance with the new regulatory requirements.