OSHA Revises Reporting Requirements

Faegre Baker Daniels columnist writes about Business Matters in the November EPM.
By Gregory N. Dale | October 12, 2016

The Occupational Safety and Health Administration published its final rule in May on electronic submission of occupational injury and illness data. While it does not change employers’ existing obligations to collect, maintain and certify injury and illness records, it does require electronic submission of certain records by some employers. 

Under the new rule, establishments with 250 or more employees subject to OSHA’s recordkeeping regulation must electronically submit certain information from the Log of Work-Related Injuries and Illnesses (Form 300); the Summary of Work-Related Injuries and Illnesses (Form 300A); and the Injury and Illness Incident Report (Form 301). In 2017, the deadline for submitting only form 300A is July 1 and in 2018, the deadline for all three forms is July 1. Starting in 2019, the electronic submission deadline is March 2.

Smaller establishments with 20 to 249 employees in certain high-risk industries must electronically submit Form 300A. High-risk industries generally include construction, manufacturing, a wide variety of trucking and transportation industries, warehousing and storage.  The list of regulated industries is available on the OSHA website at “Recordkeeping: NAICS Codes for Electronic Submission.” The submission deadline for form 300A for this category is July 1 in 2017 and 2018 and March 2, beginning in 2019.

Establishments with fewer than 20 employees at all times during the year do not have to routinely submit information electronically to OSHA, unless otherwise advised. OSHA requires employers to count full-time, part-time, seasonal and temporary workers for purposes of the new regulation.
The electronic reporting process is expected to improve OSHA’s ability to analyze workplace injury and illness trends, respond to statistically significant indicators, and engage its compliance and enforcement activities more efficiently.

Significantly, OSHA also has indicated its intent to disclose on its website some of the data collected as a means of encouraging employers to improve the level of occupational safety and health in their worksites. OSHA comments it has effective safeguards in place to prevent disclosure of personally identifiable information.

The new rule also requires that employers “establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.” Procedures cannot deter or discourage reporting and the rule prohibits employers from discharging or discriminating against any employee for reporting a work-related injury or illness. The deadline to inform employees of the new rules is Nov. 1. Employers should confirm they are using the current OSHA-approved posting which can be found at www.osha.gov/Publications/poster.html.

Under the new retaliation-free environment rules, employers will want to evaluate several common workplace programs. OSHA believes underreporting is a potential result of programs such as safety incentive awards (monetary or prizes) based upon low incidents of workplace injuries or lost workdays. A recent OSHA pilot program, W-SVEP, covering the states of Missouri, Kansas, Nebraska and companies under federal enforcement in Iowa extends the OSHA’s Severe Violator Enforcement Program to alleged retaliation complaints found to have merit, including “where a company has a rate-based incentive program for work-related injuries.”

OSHA also views certain rigid reporting requirements as having a chilling effect. OSHA notes “Many employers have policies that require the immediate reporting of a work-related injury by the worker and, for some employers, failure to follow this requirement will result in discipline, regardless of the circumstances. In some cases, workers may be unaware that they have suffered an injury, since the pain or symptoms do not manifest until later . . . This is particularly true for musculoskeletal injuries.” OSHA recognizes “employers have a legitimate interest in maintaining accurate records and ensuring that employees are reporting genuine work-related injuries and illnesses in a reasonably prompt manner. These interests, however, must be balanced with fairness to employees who cannot reasonably discover their injuries or illnesses within a rigid reporting period.”  

Also, policies on drug testing should be reviewed. OSHA states blanket post-injury drug testing can be a violation. The new rule does not prohibit employers from drug testing employees; however, the drug testing should be limited to situations where 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. 
In July, a lawsuit was filed challenging aspects of the new rule. Nonetheless, at present, there is no question that OSHA’s new rule presents several compliance issues as employers consider the new reporting obligations and employee policy impacts.

Author: Gregory N. Dale
Partner, Faegre Baker Daniels
[email protected]