- OSHA's New Workplace Injury Reporting Rule: A Nudge in the Right Direction, or Enforcement by Shame?
- July 22, 2016
- Law Firm: Duane Morris LLP - Philadelphia Office
- On May 11, 2016, the Occupational Safety and Health Administration (OSHA) finalized a recordkeeping and reporting rule that will require certain employers to electronically track and submit information regarding workplace injuries and illness. OSHA intends to post the data from employers’ submissions on a publicly accessible website. The final rule also requires employers to inform employees of their right to report work-related injuries and illnesses without fear of retaliation.
Currently, covered employers already must maintain records of their workplace injuries and illnesses. The majority of this data, however, are not shared outside the workplace. While OSHA views this new rule as “nudging” employers toward preventing worker injuries and illnesses, a concern is that it could lead to public shaming of companies without providing any explanation of the facts and circumstances surrounding the particular cases involved.
All employers with 250 or more employees will be required to electronically submit OSHA Form 300 Logs, Form 301 and Form 300A summaries on an annual basis. Employers with 20 or more employees in industries designated by OSHA as hazardous will be required to submit OSHA Form 300A summaries electronically on an annual basis, as well. The new rule does not change what injuries or illnesses employers are already required to record.
The rule also changes employer obligations for ensuring employees report all work-related injuries and illnesses. Effective August 10, 2016, before the new electronic reporting requirements take effect, all employers, regardless of size, must develop employee injury and illness reporting requirements that meet certain criteria. Under the new rule, employers must affirmatively inform employees that they have a right to report work-related injuries and illnesses free from retaliation. OSHA has stated that employers may meet this requirement by posting the OSHA “Job Safety and Health - It’s The Law” poster from April 2015. Employers also have to ensure that procedures for reporting work-related injuries and illnesses are reasonable and do not deter or discourage employees from reporting. While employers were already prohibited from retaliating against employees for reporting work-related injuries or illnesses, the new rule allows OSHA to issue citations to employers if it concludes that the employer either retaliated against employees for reporting work-related injuries or illnesses or deterred them from reporting.
OSHA will phase in implementation of the new reporting requirements. On July 1, 2017, employers will be required to submit only their Form 300A summaries. The following year, employers will be required to submit their Form 300 Logs, Forms 301 and Form 300A summaries on July 1, 2018.
OSHA is still working out the technical aspects of how reports will be filed. After reports are submitted, OSHA will clean the files of information identifying individual workers and post data online for each establishment.
What This Means for Employers
Based on the new rule, employers should consider taking the following steps:
- Promptly review workplace safety policies and reporting procedures to ensure that such policies inform employees of their right to report work-related injuries and illnesses free from retaliation and do not deter or discourage employees from reporting.
- Ensure that appropriate and current OSHA posters are in place.
- Train personnel with responsibilities for completing and maintaining the impacted OSHA logs regarding the rule’s electronic reporting requirements and remind managers, supervisors and other personnel with reporting responsibilities of anti-retaliation practices.