JULY 11, 2016 OSHA ELECTRONIC INJURY REPORTING RULE CHANGES On May 12, 2016, the Occupational Safety and Health Administration (OSHA) issued new recordkeeping regulations. The new recordkeeping regulations cover annual electronic reporting of injuries and illnesses and it also includes anti-retaliation protections. The annual electronic reporting requirements don t go into effect until January 1, 2017, but the anti-retaliation provisions go into effect much earlier, on August 10, 2016. Electronic Reporting There are three different OSHA Injury Reporting forms OSHA 300, OSHA 300A, and OSHA 301.The OSHA 300 form is a log employers are required to keep that details incidents, such as what body part was effected. The OSHA 300A form is a summary form of recordable losses and injuries (that require more than first aid), which is posted in a common area in the workplace. The OSHA 301 form is an injury and incident report that details who was hurt, how and where the incident occurred, what part of the body was injured and treating health care provider information. Currently, employers are required to record illnesses and injuries in the workplace, but OSHA doesn t have direct access to this data. Under the new electronic reporting provisions, certain employers will be required to annually submit certain electronic injury and illness data directly to OSHA. The annual electronic reporting requirements apply to three categories of employers: 1. Large employers (i.e., establishments with 250 or more employees that are not exempt from OSHA s recordkeeping rules) 2. High risk employers (i.e., establishments with 20-249 employees in certain high-risk industries (see Chart of OSHA s High Risk Industries for Electronic Reporting for a list of high-risk industries covered by the new rule)
3. Any other employers from which OSHA makes a written request for data. OSHA intends to provide notification of these data collections through direct mailings, publication in the Federal Register, and publication on its website and other notices. The new reporting requirements will be phased in over the next two years as follows: July 1, 2017 July 1, 2018 March 2, 2019 (and every year thereafter) Non-Exempt Employers with 250+ Employees 2016 OSHA Form 300A Logs due 2017 OSHA Forms 300, 300A, and 301 due Prior year s OSHA Forms 300, 300A, and 301 due Employers in High Risk Industries with 20-249 Employees 2016 OSHA Form 300A Logs due 2017 OSHA Form 300A Logs due Prior year s OSHA Form 300A Logs due Note: For those employers who utilize an alternative to the OSHA Form 301, such as a Workers Compensation First Report of Injury, as expressly allowed by the existing rules, these changes will in essence require that the employer also complete the OSHA Form 301. Because the information is kept and must be submitted by each establishment, many companies will be required to submit thousands of reports every year. OSHA s rule also requires employers to adopt an electronic recordkeeping system or to transfer all paper records to electronic format for submission. There is no option for a paper submission for large or small employers.
Anti-Retaliation Protection Effective 90 days after publication of the rule, on August 10, 2016, employers must establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. The rule does not specify whether this procedure must be in writing, but for practical purposes of proving the existence of the procedure, employers will need to do so. Employers already are required to have work-related injury and illness reporting procedures for employees and to inform employees how to report injuries and illnesses, and are prohibited from retaliating against employees for reporting injuries and illnesses under Section 11(c) of the OSH Act. However, the new rule bolsters these requirements in the following ways: 1. 2. 3. Employers must now affirmatively inform employees that they have a right to report work-related injuries and illnesses free from retaliation. Employers must ensure that their procedures for reporting work-related injuries and illnesses are reasonable and do not deter or discourage employees from reporting. Section 11(c) s prohibition on retaliating against employees for reporting work-related injuries or illnesses is now separately stated. While these changes do not substantively alter an employer s existing responsibilities, they are significant because they provide OSHA with new mechanisms for issuing citations. Previously, an employer could only be cited for failing to have a procedure for reporting workplace injuries and illnesses. Now, OSHA may cite an employer for any such procedures that it believes are not reasonable or that it believes discourage employees from reporting. It is expected that OSHA will use the revised regulation as a means to cite employers with the types of safety incentive programs of which OSHA disapproves.
Drug Testing and the Final Rule Although not in the specific regulation, there is a significant item tucked into the language of the final rule that addresses employer drug testing policies, particularly those requiring post-incident drug testing. While the new rule is facing legal challenges on a number of fronts, unless and until a final favorable adjudication by the courts, employers are advised to run their substance abuse policies by their corporate legal counsel to ensure the policies don t run afoul of OSHA s stance. In the final rule, OSHA discusses the potential adverse impact that post-incident drug testing policies could have on employees reporting work-related injuries and they state: the final rule does not ban drug testing of employees. However, the final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which 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. Again, employers should ensure that their corporate legal counsel review drug testing policy language in light of OSHA s newly revealed view. What to Do Next For employers that need to improve in these areas, the following strategies are recommended to strengthen your commitment to the safety of your employees: Look to Best-in-Class Companies. If once injury-related data is made available by OSHA you find your company is not as safe as it could be, look to the companies who are excelling in this area for guidance. A best-in-class company will take a leading indicator approach to safety (detailed below), implement a drug-free workplace program, conduct integrity screenings for new employees, and follow the principles detailed in 8 Principles of Safety Leadership by Mark Troxell.
Take a Leading Indicator Approach. Identify and recognize hazards before an employee gets hurt rather than determine why the injury occurred after the fact (lagging indicator). For example, your company can take a leading indicator approach by establishing a system of reporting near misses and addressing identified hazards, and conducting routine safety inspections. It is always better to proactive rather than reactive when it involves an employee s safety. Implement a Workplace Substance Abuse Policy and Program. Among many other risks, employees who abuse drugs have lower job performance and put themselves at risk for injury, leading to higher healthcare and workers compensation costs. A clear workplace substance abuse policy and program can help lower the number of injuries and illnesses reported to OSHA. Facilitate Employee Training. One of the easiest ways to decrease injuries in the workplace is through employee training programs and safety education. When the employee knows what is expected, the risk of injury is significantly decreased. Safety expectations should be documented and clearly communicated to all employees. Conduct Incident Investigations. Incident investigations are necessary to prevent accidents from happening in the future, but they also send a strong message. Following up on incidents or near misses communicates to the employee that the employer is serious about safety and injury prevention. The companies with the lowest incident rates will also have an open culture where incidents are investigated in a transparent manner. For more information on the new OSHA Electronic Injury Reporting Rule, review the OSHA Fact Sheet and visit https://www.osha.gov/recordkeeping/finalrule/. DEANNA HERMAN Safety Consultant dherman@grahamco.com The Graham Building Philadelphia, PA, 19102 215-701-5264