How “safe” is your workplace? Under new OSHA Rule, the public will be the judge

Under a new Final Rule from the Occupational Safety and Health Administration (OSHA) many employers will now be required to report injuries and illnesses to OSHA, which plans on making this information available to the public at large. This is concerning to employers for various reasons, not least because this data could be easily misconstrued. This Alert summarizes this sweeping new Rule.

Reporting of Injuries and Illnesses

The new Rule expands OSHA’s current recordkeeping requirements for injuries and illnesses by adding a reporting obligation based on establishment size or industry.

Coverage:

The reporting requirements cover each establishment with 250 or more employees at any time during the previous calendar year and which is already subject to the OSHA recordkeeping requirements. Also subject to new reporting requirements are establishments with 20 to 249 employees in certain designated “hazardous” industries, including building material and supplies dealers, lessors of property, emergency services, general and specialized freight trucking, and many others (about 432,000 establishments nationally). The Rule reserves OSHA the authority to expand its reach by stating generally that, “[u]pon notification, you [i.e., any other establishment] must electronically submit the required information.”

What Must be Reported:

The Rule requires all establishments with 250 or more employees to electronically report the information they collect regarding workplace injuries and illnesses on the following forms:

• Form 300A - Summary of Work-Related Injuries and Illnesses;
• Form 300 - Log of Work-Related Injuries and Illnesses (except employee names); and
• Form 301 - Injury and Illness Incident Report (except employee names, addresses and medical provider/facility names and addresses).

Smaller establishments with 20 to 249 employees in designated hazardous industries must report the information collected on Form 300A only.

Public Access:

OSHA intends to make this data available to the public after removing employees’ personally identifiable information only. The Agency indicated it will not remove other information, such as annual number of employees and total hours worked by employees during the year, which it does not consider confidential. This stance is a departure from OSHA’s previously-held position that such information is confidential because it corresponds with business productivity. The Agency states that, “employers will have an opportunity to inform OSHA that submitted data may contain . . . confidential commercial information,” but such a notice is unlikely to adequately protect this information. Employers should take care to report the minimum information required.

Compliance Timeline:

The new requirements take effect on January 1, 2017, and will phase in as follows: 

• Beginning in 2017, all covered establishments will have to report the information they collected the previous year on Form 300A.
• Beginning in 2018, establishments with 250 or more employees will also have to report information from the previous year’s Forms 300 and 301.
• In 2017 and 2018, the submission deadline is July 1st.
• Beginning in 2019, the annual reporting deadline will be March 2nd.

Encouraging Employees to Report Internally

The Rule’s other provisions are more time-sensitive and require all employers to encourage employees to report injuries and illnesses internally without fear of reprisal. Specifically, the Rule requires that every employer take the following measures by August 10, 2016:

• Establish a “reasonable” procedure for employees to report work-related injuries and illnesses promptly and accurately.
• Inform each employee of how to report a work-related injury or illness pursuant to your procedure.
• Inform each employee that (A) “Employees have the right to report work-related injuries and illnesses,” and (B) “Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses.”

According to the Rule, “[a] procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”  OSHA views this language as creating enforcement power to fine employers for safety incentive programs that the Agency believes would deter employees from reporting. OSHA offers examples of what type of incentive program might result in a citation, such as burdensome procedures with “too many steps” or “rigid, prompt-reporting requirements” that result in employee discipline for late reporting. It remains to be seen whether OSHA may find other common policies unreasonable, such as post-accident drug-testing and zero tolerance policies for certain safety violations.

Compliance Recommendations

The Rule is likely to be challenged on the basis that it exceeds OSHA’s authority. Nonetheless, until further notice, companies should operate under the assumption that these new obligations will take effect as scheduled. Companies subject to the Rule should audit their recordkeeping procedures, and all companies should review their reporting policies. For more information or guidance on this issue, please contact one of Honigman’s Labor and Employment attorneys.