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Overview. On May 12, 2016, the Occupational Safety and Health Administration (“OSHA”) issued a final rule requiring all employers to notify employees of their right to report illnesses and injuries and be free from retaliation for doing so (in August 2016), and requires covered employers to begin electronically reporting work-related injuries and illnesses (in 2017). The rule also impacts incentive programs and automatic post-accident drug testing. For more information visit OSHA’s“resource page” regarding the final rule.
Effective Dates. There are two effective dates employers need to be aware of:
By August 10, 2016 (2 months from today), all employers must provide notice to their employees that they have a right to report a work-related injury or illness, and a right to be free from discharge or other discrimination for doing so. Employers who post the April 2015 (or later) version of the OSHA Job Safety and Health-It’s the Law Poster will meet this requirement.
By July 1, 2017, establishments with 250 or more employeesmust electronically submit information from their 2016 form 300A. By July 1, 2018, these same employers will be required to electronically submit information from all 2017 forms (300A, 300, and 301). Beginning in 2019 and every year thereafter, the information must be submitted by March 2.
By July 1, 2017, establishments with 20 or more, but less than 250, employeesin designated “high risk” industriesmust electronically submit information from their 2016 form 300A.By July 1, 2018, these employers must submit information from their 2017 form 300A. Beginning in 2019, and every year thereafter, the information must be submitted byMarch 2.
According to OSHA, those states that operate under a state OSHA plan will have to adopt requirements that are substantially similar within six months.
Details. OSHA’s final electronic recordkeeping rule, “Improve Tracking of Workplace Injuries and Illnesses,” was published in the Federal Register on May 12, 2016 and has two main elements (1) internal employee injury and illness reporting requirements and (2) electronic reporting, both of which are described in detail below.
Employee Injury Reporting Policies.
The final rule requires employers to develop employee injury and illness reporting requirements that met specific criteria. Specifically, employers must inform employeesof the following:
- Procedures for reporting work-related injuries and illnesses promptly and accurately. According to the final rule, a procedure is not reasonable if it would deter or discourage employees from reporting injuries or illnesses;
- Employees have theright to report work-related injuries and illnesses;
- Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses.
Drug Testing and Incentive Policies.
In the proposed rule, OSHA suggested that safety incentive policies and post-accident drug testing could be considered practices that would discourage employees from reporting work-related injuries or illnesses and therefore could be discriminating practices. In the final rule OSHA explains, “[T]he final rule 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. To strike the appropriate balance here, 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.”
Regarding incentive programs, OSHA states, “Employee incentive programs take many forms. An employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such program might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, if the programs are not structured carefully, they have the to discourage reporting of work-related injuries and illnesses without improving workplace safety.” “[T]o the extent incentive programs cause under-reporting, they can result in under-recording of injuries and illnesses, which may lead to employer liability for inaccurate recordkeeping. The latter concern is what is being addressed by this final rule’s prohibition on employers using incentive programs in a way that impairs accurate recordkeeping.”
Electronic Submission of Injury and Illness Reports by Covered Employers.
Currently, employers with more than ten employees and whose establishments are not classified as a partially exempt industry must record work-related injuries and illnesses using OSHA Forms 300, 300A and 301, available here. Partially exempt industries include establishments in specific low hazard retail, service, finance, insurance or real estate industries.
Employers that are required to keep Form 300 (the Injury and Illness log), must post Form 300A, the Summary of Work-Related Injuries and Illnesses, in the workplace every year from February 1 to April 30. Current and former employees, or their representatives, have the right to access injury and illness records. Employers must give the requester a copy of the relevant record(s) by the end of the next business day.
The new rule requires electronic submission of these recordstoOSHA depending on the employer’ssize and industry:
- Employers with 250 or more employees (including part-time, seasonal or temporary workers) in each establishment must electronically submit their OSHA 300, 300A and 301 forms to OSHA on an annual basis;
- Employers with more than 20but less than 250 employees in certain high risk industries must electronically submit their 300A form on an annual basis;
- Employers who receive notification from OSHA must electronically submit their 300, 300A and 301 forms to OSHA.
OSHA will then post the data from employer submissions on a publically accessible Web site. According to the final rule, OSHA does not intend to post any information that could be used to identify individual employees.
Call to Action. As of now, there is no OSHA site to which electronic records can be posted. However, the information, when posted, should be anonymized, as the information will become publicly accessible. ADP Comprehensive Services is working on enhancements to its product, to enable this anonymization.
Employers with drug testing programs that include automatic post-accident testing may wish to consider waiting until more guidance is published before making changes to their policy, or may wish to proactively change their policies to reflect that post-accident drug testing will occur only when combined with reasonable suspicion that impairment was the cause of the accident and/or resulted in property damage of a certain dollar value.
All employers should post the most updated OSHA Job Safety and Health-Is the Law poster (April 2015 or later) by August 10, 2016.
OSHA has indicated that it will provide additional information for employers regarding this new rule. We will, of course, update you on new developments.
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