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May 20, 2016

OSHA Revises Injury Recording and Reporting Rule

Last week, the Occupational Safety and Health Administration ("OSHA") issued a final rule revising regulations for the reporting and recordkeeping of workplace injuries.

Currently, employers with 10 or more employees whose establishments are not classified as a partially exempt industry, are required to record work-related injuries and illnesses using the Form 300, 300A and 301. (Partially exempt industries include establishments in specific low hazard retail, service, finance, insurance or real estate industries.) In addition, employers which are required to keep the Form 300, must post the Form 300A, in the workplace every year. These requirements remain in effect.

Under the new final rule, which was finalized last week, in addition to reporting, employers with 250 or more employees, in industries covered by the recordkeeping regulation, must now electronically submit the injury and illness information collected for the Form 300 (Log of Work-Related Injuries), Form 300A (Summary of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Report) to OSHA. Establishments with 20-249 employees in certain hazardous industries must electronically submit information from Form 300A only.

OSHA intends to analyze this data to "improve OSHA's ability to identify, target, and remove safety and health hazards" and make the data public per President Obama's Open Government Initiative. After removing the personally identifiable information, OSHA will post the employer specific illness and injury information on its website thereby creating "the largest publicly available data set on work injuries and illnesses."

In an attempt to justify what some employers are already referring to as "public shaming," OSHA explained: "Just as public disclosure of their kitchens' sanitary conditions encourages restaurant owners to improve food safety, OSHA expects that public disclosure of work injury data will encourage employers to increase their efforts to prevent work-related injuries and illnesses."

The new electronic reporting requirements will be phased in over two years. Employers with 250 or more employees must submit information from their 2016 Form 300A by July 1, 2017 and information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Employers with 20 to 249 employees in certain high-risk industries must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, all employers must submit the information by March 2.

Significantly, the new rule also includes three provisions aimed at encouraging employees to come forward and report injuries and illness without fear of reprisal:

  1. Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation.
  2. An employer's procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting.
  3. An employer may not retaliate against employees for reporting work-related injuries or illnesses.

Under the current regulations, OSHA acts after an employee files a complaint. Under the new rule, however, OSHA not only has the authority to issue citations to an employer for retaliation even if the employee did not file a complaint, but also if OSHA determines the employer has a program that it finds deters or discourages reporting through the threat of retaliation. In view of this, and the effective date of August 10, 2016, employers should promptly conduct reviews of their workplace safety policies to make sure they do not conflict with the rule's prohibitions on reporting safety incidents.

If you have any questions about compliance with the new regulation, or you are unsure how they will impact your business,  please contact the Labor & Employment attorney at Barclay Damon with whom you normally work or any attorney in our Labor & Employment Practice Area.


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