OSHA Electronic Recordkeeping and Anti-Retaliation Final Rule: Practical Tips for Ensuring Compliance

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1 OSHA Electronic Recordkeeping and Anti-Retaliation Final Rule: Practical Tips for Ensuring Compliance Presented by: Raymond Perez, II, Esq. Of Counsel Jackson Lewis P.C. Wednesday, April 5, :30 p.m. to 3:00 p.m. Eastern 12:30 p.m. to 2:00 p.m. Central 10:30 a.m. to 12:00 p.m. Pacific or For On-Demand purchasing information, contact customer service at: or BLR and HR Hero Business & Legal Resources and HR Hero. All rights reserved. These materials may not be reproduced in part or in whole by any process without written permission. This webinar qualifies for Recertification Points. Holders of CSP and related BCSP certificates may earn 0.15 Recertification Points for attending this webinar. Other certificate holders qualify for continuing education points according to their certifying agency guidelines.

2 OSHA Electronic Recordkeeping and Anti-Retaliation Final Rule: Practical Tips for Ensuring Compliance Presented by: Raymond Perez, II, Esq. Of Counsel Jackson Lewis P.C. April 5, 2017 Two primary aspects to the final rule: Electronic Submission of Recordkeeping Records Anti-retaliation provisions

3 Electronic Submission - Employers with 250 or more employees (includes part-time, seasonal, and/or temporary workers) in each establishment must electronically submit their 300, 300A, and 301 forms to OSHA annually - Employers with more than 20 but less than 250 employees in each establish in certain identified industries must electronically submit their 300A form annually - Employers who receive notification from OSHA to electronically submit their 300, 300A, and 301 forms to OSHA OSHA will post the data from employer submissions on a publically accessible website not to include an information that could be used to identify individual employees Three ways to submit information: Web form (manual submission), Batch file (upload a CSV file to process single or multiple establishments ) Electronic transmission via application program interface (API). OSHA expects they will be ready to start accepting company submissions in early 2017 but no update from the agency.

4 Employers required to develop reasonable employee injury and illness reporting requirements employers must inform employees of the following: Procedures for reporting work-related injuries and illnesses promptly and accurately - employees must not be deterred or discouraged from reporting injuries and illnesses (reasonable reporting procedures are required) Employees have the right to report work-related injuries and illnesses Employers are prohibited from discharging on in any manner discriminating against employees for reporting work-related injuries and illnesses Post-accident drug testing should limit post-accident testing to situations in which employee drug use is likely to have contributed to the accident and for which the drug test can accurately identify impairment caused by drug use Safety Incentive Programs Be careful that program doesn t incentivize underreporting e.g. bonus for team of employees if no one is injured over defined period of time vs. bonus for employees participating in safety committee Disciplinary Programs Employers must not use disciplinary action, or the threat of disciplinary action, to retaliate against an employee for reporting an injury or illness.

5 October 19, 2016 OSHA issued guidance to clarify the new rule as it relates to drug testing, safety incentive and disciplinary policies Drug testing conducted under a state worker s compensation law or other state or federal law does not violate the new rule. The central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness. Example: employee who reports a injury sustained as bystander being drug tested this would be in violation of the rule because the injury could not possibly have been caused by drug use. Example: drug testing an employee who is injured when he inadvertently drives his forklift into another piece of equipment would not be in violation of section (b)(1)(iv) Employees conduct the manner in which he operated the forklift contributed to his injury, and because drug use can affect conduct. Drug testing an employee who engaged in conduct that caused an injury is objectively reasonable because conduct can be affected by drug use. OSHA asserted that drug tests that can indicate impairment at the time of the injury or illness would be permissible. The only test capable of such a determination is an alcohol test. At this time, OSHA may consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs.

6 Employers must not use incentive programs in a way that penalizes workers for reporting work-related injuries or illness. Incentive programs that reward for employee participation in safety program activities and evaluations, completion of employee training, and safety walkthroughs and identification of hazards are permissible. Example of a cash prize raffle for each month without a lost time incident. If the employer cancels the raffle in a particular month simply because an employee reported a lost-time injury without regard to the circumstances of the injury, such a cancellation would likely violation section (b)(1)(iv) because it would constitute adverse action against an employee simply for reporting a work-related injury. Employees reported injuries that may have resulted from worksite incidents occurring a few days earlier. At the time of the incidents, the employees were unaware they had suffered injuries, as symptoms did not develop until later. When the workers realized and reported their injuries, U.S. Steel suspended both workers for 5 days without pay for violating the company s immediate reporting policy. Employees filed 11(c) whistleblower claims According to OSHA - U.S. Steel s policy discourages employees from reporting injuries for fear of retaliation

7 Settlement agreement with OSHA: US Steel paid back wages and interest Rescind disciplinary suspension Rescind the immediate injury reporting requirement US Steel s new policy: Employees at work become aware of work-related injury must report as soon as reasonably possible but in no event later than leaving the plant or 8 hours after becoming aware of work-related injury Employees at home who become aware of a work-related injury must report no later than 8 hours after becoming aware of work-related injury OSHA provided several examples of instances of disciplinary programs that would violate section (b)(1)(iv): Automatically suspending an employee who reports a work-related injury. Assigning employees points that have negative employment consequences for reporting a work-related injury. Pre-textual discipline, such as disciplining an employee for allegedly violating a safety rule but the real basis for discipline was the injury or illness report. Here, OSHA would look to see if other employees are also disciplined for violating the same safety rule in cases where a violation of that safety rule does not result in any injury. Rigid prompt reporting requirements, such as disciplining for not immediately reporting a work-related injury in cases where the employee has not yet had time to identify a work-related injury has occurred.

8 Example: an employer disciplinary program that would discipline an employee who is injured when he is stung by a bee for violating the company s rule to maintain situational awareness and the employer only disciplines for violations of this safety rule when employees are injured. OSHA would consider this a violation of section (b)(1)(iv). On the other hand, an employer who disciplines an employee for by-passing a guard, contrary to the employer s safety policies, even when that employee is injured would not be a violation of section (b)(1)(iv). Disciplining employees for not reporting work-related injuries immediately or as soon as practicable is permissible where employers allow sufficient time for employees to realize they have suffered a workrelated injury. For example, an employee twists his ankle at work but does not immediately realize he is injured and the next morning his ankle is swollen and he reports his injury. Disciplining an employee for failing to report the injury immediately would violate section (b)(1)(iv). However, if this same employee waits a week once he realizes his ankle is swollen and he has suffered a work-related injury then disciplinary action in this case would not be a violation. A key aspect for any employer disciplinary program will be consistency and whether the employer applies the policy consistently to all employees those injured and not injured.

9 December 1, 2016 Provisions regarding employee injury reporting policies Specifically, requirements to inform employees they have a right to report a work-related injury Prohibition from discharging or otherwise discriminating against employees for reporting work-related injuries or illnesses Employers can comply with these requirements by posting the OSHA It s the Law poster April 2015 or newer January 1, 2017 Requirements relating to the electronic submission of Part 1904 recordkeeping forms Establishments with 250 employees must submit information from their 2016 form 300A by July 1, 2017 Establishments with 20 employees but < 250 employees in designated high-risk industries must submit information from their 2016 form 300A by July 1, 2017 January 1, 2018 Establishments with 250 employees must submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018 Establishments with 20 employees but < 250 employees in designated high-risk industries must submit their 2017 form 300A by July 1, 2018 Beginning in 2019 and every year thereafter Information must be submitted annually by March 2

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12 Raymond Perez, II, Esq. Raymond Ray Perez is Of Counsel in the Atlanta, Georgia, office of Jackson Lewis P.C. He practices in all areas of labor and employment law with a focus on FLSA/Wage-Hour laws, employment discrimination, immigration matters, unemployment compensation, occupational safety and health (OSHA), affirmative action programs and policies (OFCCP), employment policies and handbooks, personnel and Form I-9 audits, contract issues, federal contractor provisions and responsibilities, litigation in all forums and litigation avoidance and defense management.