The U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a final rule on May 11 that greatly enhances injury and illness data collection from employers. The new rule will require many employers to electronically submit information about workplace injuries and illnesses to the government, and OSHA has announced it intends to post this data on its public web site.
Details Of Finalized Rule: Who, What and When
Under the final rule, OSHA has revised its requirements for recording and submitting records of work-based injuries and illnesses. Once the new rule takes effect, you will be required to electronically submit the recorded information for posting on the OSHA web site. Establishments with 250 or more employees that are currently required to keep OSHA injury and illness records must electronically submit information from the OSHA 300 Logs, the 300A Summaries and the 301 Injury and Illness Incident Reports to the agency.
For these establishments, there will be a phase-in where only the 300A Summaries for 2016 will be required to be electronically submitted by July 1, 2017. Meanwhile, the OSHA Forms 300A, 300 and 301s for 2017 will all be required to be submitted by July 1, 2018.
This new rule also will cover those establishments with 20 to 249 employees that are classified in 67 specific industries, which historically have high rates of occupational injury and illness. These businesses also must electronically submit information from their 2016 OSHA 300A Summaries to OSHA by July 1, 2017. Beginning in 2019, the submission deadline will be changed from July 1 to March 2 for the previous year.
The final rule also allows OSHA to collect information from employers that are not required to submit information to the agency on a routine basis. These employers would only be required to submit the data requested upon written notification from OSHA.
Anti-Retaliation Protections
Under the new rule, OSHA reemphasizes the requirements of the whistleblower protections found in Section 11c of the federal law for employees to report injury and illnesses without fear of retaliation. The final rule contains three provisions to highlight the retaliation protection.
Specifically, you must inform employees of their right to report work-related injuries and illnesses free from retaliation. OSHA has stated that you may meet this obligation by posting the “Job Safety and Health – It’s the Law” Workers’ Right Poster from April 2015.
Second, your procedures for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting. Finally, you may not retaliate against employees for reporting work-related injuries or illnesses.
Under this expanded retaliation provision, arguably, you can now be specifically cited for retaliation under the recordkeeping standard and, at the same time, your employees can file Section 11c retaliation complaints. If so, this greatly enhances the potential liability against you for any discipline issued for violation of safety rules.
Public Posting Of Information Causes Concern
As noted above, OSHA will post the establishment’s specific injury and illness data it collects under this final recordkeeping rule on its web site. OSHA has stated that it will remove any personally identified information (PII) before the data is released to the public.
While the agency believes that public access to this very large set of workplace injury occurrences will provide public health researchers with an unprecedented opportunity to advance the field of injury and illness causation and prevention research, it also opens the door for unprecedented opportunities for significant OSHA citations and penalties, as well as negative consequences from other third parties utilizing this data.
The agency also claims that this new recordkeeping reporting requirement will help you and your employees to identify hazards, fix problems, and prevent additional injuries and illnesses. However, the business community has expressed its concerns about a number of unintended negative consequences that could result from this revision of the recordkeeping standard throughout the rulemaking process.
Specifically, the business community believes that this new requirement will force companies to publicly reveal confidential business details that had in the past been considered privileged and confidential. It also will give undo access to business processes to competitors, plaintiffs’ lawyers, community activists and union organizers for use against the company. Finally, there is serious concern that the new rule places an excessive burden on employers while lacking statutory authority.
About the Author: Edwin Foulke Jr. is a partner in the Atlanta and Washington, D.C. offices of Fisher Phillips. He co-chairs the firm’s Workplace Safety and Catastrophe Management Practice Group.
Prior to joining Fisher Phillips, Ed was the assistant secretary of labor for occupational safety and health. Named by President George W. Bush to head OSHA, he served from April 2006 to November 2008. During his tenure at OSHA, workplace injury, illness and fatality rates dropped to their lowest levels in recorded history. He also served on the OSHA Review Commission in Washington, D.C., chairing the commission from March 1990 to February 1994.
For more than 30 years, Foulke has worked in the labor and employment area, focusing on occupational safety and health issues, workplace violence risk assessment and prevention, whistleblower protection, and accident and fatality prevention. He is recognized as one of the nation’s leading authorities on occupational safety and health and is a frequent keynote speaker and lecturer on workplace safety, leadership development, and other labor and employment topics.