On Wednesday, the Occupational Safety and Health Administration amended its occupational injury and illness recordkeeping rules to require larger establishments with at least 250 employees at any time during the previous calendar year to submit their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries to the Agency through a new website that will allow, with very limited exceptions, for public access to that information. The new rule also requires smaller establishments, with at least 20 employees in certain industries with high injury and illness rates, to submit the information from their 300A Annual Summary to the new OSHA injury and illness website each year. A list of the designated industries, which include all of manufacturing, construction, and agriculture, is available here.
Electronic submission of injury records to publicly accessible website
The new electronic submission requirements will be phased in as follows:
- Large (250+) and small (20-249) establishments must submit only the 300A Annual Summary for the first year, calendar year 2016.
- In subsequent years those establishments with 250 or more employees will also have to include their OSHA 300 Logs and OSHA 301 Incident Reports.
- In subsequent years, those establishments with 20-249 employees must submit only the 300A Annual Summary.
For the first two years under the new rule, the submission deadlines for submitting the previous calendar year’s records are July 1, 2017; July 1, 2018; and then beginning in 2019, and for every year thereafter, March 2.
In addition to the new electronic submissions putting a much greater volume of establishment-specific injury and illness information in the hands of OSHA, which has acknowledged that it will use the additional information to conduct targeted inspections, the information will also be accessible by the public via a searchable website database. It will be readily available for unions, public interest groups, the media, and any other individuals or organizations to use for any purpose. For example, a union could use the information as an organizing tool, a reporter could publish the information, or a disgruntled former employee could base a complaint to OSHA on the recordkeeping information. Employees could also easily access the information to determine whether their employer has recorded the injuries and illnesses that have occurred, and then complain to OSHA if they are not satisfied that a case was recorded or recorded properly.
"Reasonable" reporting procedures and retaliation
The new rule also includes anti-retaliation provisions that were not in the initial, proposed version, reportedly in response to concerns expressed by organized labor and other groups that employers might be pressuring their employees not to report injuries and illnesses. Beginning August 10, 2016, employers are required to inform employees of their right to report work-related injuries and illnesses free from retaliation, and to establish “a reasonable procedure” for employees to report work-related injuries and illnesses “promptly and accurately.” The rule states that a reporting procedure “is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”
This vaguely worded anti-retaliation provision will give OSHA broad discretion to issue citations if some aspect of the employer’s reporting procedure is considered by the Agency to be “unreasonable.” It could take years for OSHA, the Occupational Safety and Health Review Commission, and the courts to flesh out what is and is not a reasonable procedure, what is meant by “prompt” reporting, and what aspects of a reporting procedure discourage or deter employees from reporting. It also remains to be seen how OSHA will view an employer’s safety incentive program or a performance review plan, if based all or in part on injury and illness rates, and whether the Agency believes that such safety incentive programs or performance review plans “unreasonably” discourage or deter employees from reporting injuries to their employers.
OSHA’s primary guidance to date on what it means by a policy or practice that “deters or discourages” an employee from reporting an injury or illness is found in its March 12, 2012, Memorandum that we reported on at the time. For example, while OSHA says that an employer can have a policy that requires an employee to report an injury within a required timeframe, usually the day of the injury, OSHA says that such a policy will be determined to be “unreasonable” if applied to an employee who has a reasonable explanation for why he or she was not aware of the injury on that day. Obviously, this rule will open every “late report” to be second-guessed and will often result in the time and expense of having to defend each such application of the late report rule if OSHA issues citations for such decisions.
The new rule also calls into question any employer that conducts post-injury drug tests for all reported injuries. OSHA states that unless it appears that the injury was a result of an impairment, requiring a post-injury drug test will be viewed as “unreasonable.” Of course, some employers might argue that it was the post-injury drug test that revealed that drug use was a contributing factor in the injury. OSHA would apparently require some objective evidence of impairment before allowing a post-injury drug test, making the test in effect what most drug testing policies call “reasonable suspicion testing.” Making this distinction in real life may prove difficult. For example, if a forklift driver turns into an aisle and either side-swipes a storage rack or fails to stop the forklift quickly enough to prevent a collision with another forklift, is that sufficient justification for a post-injury drug test? Even if you are not sure, the OSHA Compliance Officer may decide you were wrong and issue a citation. Fortunately, the new regulation does provide that, if an employer is conducting drug tests to comply with the requirements of a state or federal law, this would establish that the employer’s motive for conducting the testing was not retaliatory.
Some commenters suggested during the rulemaking process that the “reasonable” requirement was ambiguous and vague. However, OSHA has assured the public in the Preamble to the Final Rule that its direction “is sufficiently clear to notify employers of their obligations under the rule...,” saying in effect that its March 2012 Memorandum gave employers the information they needed to comply with the law. Employers will probably disagree. Is this goodbye to pizza parties if there’s an employee who will say that he didn’t report his cut finger because he didn’t want to miss the free pizza? Is one free pizza a month “reasonable” as an incentive for employees to work safely? Are two? Is a ball cap or a jacket? Where is the line beyond which the safety incentive becomes “unreasonable”?
OSHA is also allowed in these new anti-retaliation provisions to issue citations if the Agency concludes that an employee or employees were “in any manner discriminated against” for reporting an injury or illness. These citations can be based on any “retaliatory act” that allegedly occurred up to six months before the citation was issued, even if the employees involved have not complained about their treatment. This is a significant expansion beyond the 30 days currently allowed for an employee to complain to OSHA about unlawful retaliation under the safety whistleblower Section 11(c) of the Occupational Safety and Health Act. Under these new provisions, a citation could be issued if an employee or group of employees did not receive 100 percent of their potential bonus or pay raise that might have been received because the plant’s injury and illness rate was too high. Remember, the OSHA citation penalties are about to be significantly increased by August 1 of this year, with Serious violations going up to a maximum of about $12,500 and Repeat and Willful citations increased to a maximum of about $125,000. Not only would there be a citation penalty for the effect of the “retaliatory” policy, but also the required abatement would be to “eliminate the source of the retaliation” – eliminate your policy or practice – and “make whole any employee treated adversely as a result of the retaliation.” For example, if an employee were terminated for failing a drug test deemed by OSHA to be retaliatory or for failing to report an injury in a timely manner as the last step of progressive discipline, the employee could be reinstated with full back pay as a result of an OSHA citation. Or anyone denied his or her full bonus would be awarded the full bonus retroactively.
Outlook and recommendations for employers
It remains to be seen what parts, if any, of the new rule will be challenged in court, and therefore whether it will go into effect as presently scheduled on August 10, 2016. Regardless, we advise all covered employers to review their injury and illness reporting procedures, safety incentive programs, performance review plans, and the accuracy of their injury and illness recordkeeping. Now more than ever is also a good time to audit OSHA recordkeeping logs and practices and to train the designated recordkeepers on how to accurately analyze and record cases.
In the meantime, those states with their own state OSHA agencies are required to adopt identical, or substantially the same, requirements within six months.
If you have any questions feel free to contact David Smith, Bill Principe, Steve Simko, Pat Tyson, or Neil Wasser.
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