OSHA’s New Recordkeeping and Retaliation Rules OSHA’s New Recordkeeping and Retaliation Rules

OSHA’s New Recordkeeping and Retaliation Rules

On May 12, 2016 OSHA published its final rule revising its Recording and Reporting Occupational Injuries and Illnesses standards, and there are some big changes in store for employers.  The actual standards themselves cover less than three pages of text on “Employee involvement,” “Prohibition against discrimination,” and “Electronic submission of injury and illness records to OSHA” (1904.35, 1904.36, and 1904.41) But, the other 67 pages of background, explanation, and authority elaborates on potentially big changes for not just how you keep and submit records, but also for disciplinary policies, post-accident drug testing, and employee incentive programs.  The rule goes into effect in two stages – the discrimination/retaliation component kicks in November 1, 2016 (originally August 1) and the new recordkeeping requirements are effective January 1, 2017.[1] 
Anti-Retaliation Provisions
The final rule makes three changes to 1904.35: 
  • It “requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation;”
  • It “clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting;” and
  • It “prohibits employers from retaliating against employees for reporting work related injuries or illnesses, consistent with the existing prohibition in section 11(c) of the OSH Act.”
On the first point, the information requirements can be satisfied by posting OSHA’s "It's The Law" poster from April 2015 or later.  You can also incorporate this information into your reporting policies, but the posting is a simple way to accomplish the requirements, and you probably already have it up. 
Employers also must establish a “reasonable procedure” for the reporting of work related injuries and illnesses.  OSHA states that a “procedure is not reasonable if it would deter or discourage a reasonable employee form accurately reporting a workplace injury or illness.”  These would include policies that make reporting overly burdensome or difficult, those that include “prompt reporting” requirements with the potential for disciplinary actions for violations, and those that do not allow for situations where an employee might not be immediately aware of the issue or its severity:  “Employer reporting requirements must account for injuries and illnesses that build up over time, have latency periods, or do not initially appear serious enough to be recordable.”  Accordingly, policies should build in some flexible requirements, such as indicating that reports should be made “as soon as reasonably possible after becoming aware of the injury/illness.”  Policies may also include some anti-retaliation language making clear that employees complying with the reporting policy will not be disciplined for not promptly reporting an injury or illness.
The preamble to the rule specifically takes aim at three other policies related to the reporting of work related injuries and illnesses:  Disciplinary policies, post-accident drug testing policies, and employee incentive programs. 
            Disciplinary Policies
For disciplinary policies, OSHA is concerned with policies that would discipline employees for incurring or reporting injuries versus engaging in unsafe work practices.  While “[n]othing in the final rule prohibits employers from disciplining employees for violating legitimate safety rules,” even if the employee is injured and reports the injury, “employees who violate the same work rule [must be] treated similarly without regard to whether they also reported a work-related illness or injury.”
            Post-Accident Drug Testing
Post-accident drug testing potentially takes a big hit.  Specifically, OSHA stated its belief that “the evidence in the rulemaking record shows that blanket post-injury drug testing policies deter proper reporting.”  Although the final rule does not outright ban post-accident testing, it 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.”  In a rather broad restriction, OSHA states that “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.”  This does not mean that an employer must have to actually suspect drug use in any particular situation, but “there should be a reasonable possibility that drug use . . . was a contributing factor” to the reported injury.  This potentially places some fairly significant restrictions on post-accident testing, arguably resulting in a reasonable suspicion standard.  It is also uncertain what tests will be deemed to “accurately identify impairment,” as the preamble indicates “if the method of drug testing does not identify impairment but only use at some time in the recent past, requiring the employee to be drug tested may inappropriately deter reporting.”  Employers will need to evaluate which types of tests, if any currently in use, identify impairment as opposed to recent use.  Regardless, employers may conduct drug testing as required for compliance with state or federal laws and regulations, such as DOT requirements.
            Incentive Programs
Employer incentive programs have been on OSHA’s radar for some time, and the final rule further illuminates its dislike of programs that, even where well-intentioned, “have the potential to discourage reporting of work-related injuries and illnesses without improving workplace safety.”  Examples of policies that could have a deterrent effect are those that exclude workers reporting injuries from participation in bonuses or raffles or those that offer monetary incentives if zero recordable injuries are reported during a particular time frame.  The stated preference is for programs that focus on rewarding employees for correctly following safety rules and promote participation in safety-related activities, such as “identifying hazards or participating in investigations of injuries, incidents, or ‘near misses.’”  The discussion cites previous guidance materials from OSHA’s VPP program with ideas such as “providing t-shirts to workers serving on safety and health committees; offering modest rewards for suggesting ways to strengthen safety and health; or throwing a recognition party at the successful completion of company-wide safety and health training.”
Electronic Recordkeeping and Reporting
In a move that will greatly expand access and analysis of injury and illness records, OSHA will require the electronic submission of records and data for certain employers on an annual basis and for all employers upon notification, and it will make the data publicly available on its website.[2]  Employers with 250 or more employees (who are currently required to keep records) will be required to submit their OSHA Forms 300, 300A, and 301.  Employers with 20-249 employees in selected industries (including construction) will be required to submit Form 300A only.  The submission requirements are staggered, with only Form 300A to be submitted by covered employers by July 1, 2017 for the first year.  The following year, employers with 250 or more employees must also submit Forms 300 and 301 by July 1, 2018.  In subsequent years, the submission deadline will be March 2 of each year. 
While one reason given for the new reporting requirement was to increase OSHA’s ability to offer compliance assistance, the agency was very clear that other motives included allocation of enforcement resources (i.e., inspections) and specific workplace targeting.  The agency also indicated a public “nudge,” in that employers’ injury records will be available to investors, job seekers, customers, unions, researchers, and others.  Employers will also be able to compare their injury experience with other specific businesses in their industry and area.
Although legal challenges to the new rules have been filed, the date for compliance with the anti-retaliation components of the standard is rapidly approaching.  Employers should immediately undertake a review of their recordkeeping practices, injury and illness reporting procedures, disciplinary policies, drug testing requirements, and incentive programs.
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.

[1] In State Plan states, such as Indiana, the state must adopt the rules within six months of publication of the final rule.  Indiana law also provides that IOSHA “shall enforce the federal standards . . . not earlier than sixty (60) days after the final standard by federal OSHA becomes effective.”  IOSHA will publish the effective date on its website.
[2] Employers are not required to submit certain personally-identifiable information such as employee names on Form 300 (column B) or names and certain other information on Form 301 (fields 1, 2, 6, and 7).  OSHA will not publicly release personally-identifiable information that may be included on the forms.  Form 300A does not include personally-identifiable information.

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