New OSHA Regulations Require Employers to Examine Handbooks and Develop Reporting Procedures
On May 12, 2016, OSHA published a new rule requiring employers to inform workers of their right to report work-related injuries and illnesses without fear of retaliation and to make electronic submissions about workplace injuries and illnesses. In response to the new rule, employers should do two things:
Change the employee handbook to reflect the anti-retaliation provision of the new rule; and
Prepare for reporting work-related injuries and illnesses electronically.
The anti-retaliation provision of the new rule, effective August 10, 2016, requires employers to have reasonable procedures for reporting work-related injuries that do not discourage employees from reporting. Employers must inform workers of their right to report work-related injuries and illnesses without fear of retaliation from management. The employer is prohibited from discriminating against an employee for reporting a work-related injury, filing a safety or health complaint, or asking to see the employer’s injury and illness logs.
Employers may have policies that require reporting of a work-related injury and that subject employees to discipline for failure to report work-related injuries immediately. With the new rule, OSHA aims to prevent employee discipline for reporting injuries late. OSHA issued guidance stating employers must permit a reasonable timeframe after the employee has realized that he or she has suffered a work-related injury.
Employee incentive programs are under fire from the new OSHA rule. According to OSHA, incentive programs based on benefits given for maintaining an injury free workplace discourage reporting of work-related injuries. OSHA’s aim is not to ban incentive programs but rather to change them to focus on workplace safety, not the number of injuries reported.
OSHA’s guidance is limited on how an employer may develop policies that comply with the new rule. OSHA will issue a citation when employers discourage employees from reporting work-place injuries or illnesses. Employers should seek legal review before developing or changing company policies to comply with this new rule.
Effective January 1, 2017, employers with 250 or more employees must submit work-related injuries and illnesses reports electronically. Employers in designated hazardous industries with between 20 and 249 employees will also be required to submit injury data electronically. Designated hazardous industries include hospitals, nursing homes, long-term care facilities, agriculture, utilities, construction, manufacturing, grocery stores, department stores, and transportation companies.
OSHA plans to post data from employers’ electronic submissions on a publicly accessible website. According to OSHA, public disclosure of worker injuries and illnesses gives an incentive to employers to provide a safe workplace. OSHA fails to acknowledge that not all workplace injuries are a result of employers not providing a safe workplace.
Historically, OSHA has required employers to maintain a log of accidents and injuries in the workplace. OSHA has created the new rule in contemplation of putting injuries and illnesses in the eyes of the public. OSHA citations are already public and can be accessed via the internet. By publishing this additional data, OSHA is attempting to publicly shame companies into providing a safe workplace.
Citations can be issued under the new regulation when employers fail to submit accurate reports. OSHA has six months to cite employers after the submission of inaccurate records. Records must be rectified after OHSA has deemed them inaccurate.
State Plan States
In states that have state rather than federal OSHA enforcement, such as Indiana, Michigan, and Kentucky, the states have six months, from May 12, 2016, to develop regulations as effective as the new OSHA rule. Employers in those states should stay tuned to what you will have to do.
Employers are being called on to comply with more and more new regulatory requirements. We know that OSHA is just one of the areas where you are being required to make changes. It is not one that should be overlooked.
For more information on OSHA regulations, contact Felix "Pete" Wade
, Demetrice Allen
, or Ice Miller's Labor, Employment and Immigration group.
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader’s specific circumstances.