Preparing for OSHA’s Electronic Recordkeeping Rule

The deadline for OSHA’s new electronic injury and illness reporting rule is fast approaching. Barring a possible extension, the new deadline for electronically submitting records is December 1, 2017. This is an extension from the previous submission deadline of July 1, 2017.

OSHA is currently reviewing the Improve Tracking of Workplace Injuries and Illnesses final rule to decide if they should revise or remove any provisions in the current rule. The agency is expected to issue a new Notice of Proposed Rulemaking once they have completed their review.

Reporting Requirements

Under the new rule, establishments with 250 or more employees that are currently required to keep OSHA injury and illness records will have to begin submitting some of the information they gather on workplace injuries and illnesses electronically.

Establishments with 250 or more employees will be required to submit some info from OSHA Form 300A Summary of Work-Related Injuries and Illnesses, OSHA Form 300 Log of Work-Related Injuries and Illnesses, and OSHA Form 301 Injury and Illness Incident Report.

For establishments in certain high-risk industries, such as construction and manufacturing, they must submit some information from the records they keep (Form 300A) if they have 20 to 249 employees.

Establishments with 20 or fewer employees aren’t required to submit any information. For the purpose of the rule, an establishment is a single location and a firm is comprised of one or more establishments. States with state OSHA plans are required to incorporate similar electronic reporting requirements.

OSHA has established a secure website for record submissions. All required records must be submitted electronically, employers are not allowed to submit paper records. Personally identifiable information will be scrubbed with OSHA’s software before being publicly released.

Part of the reason for the new rule is to allow firms to use the data provided and recorded to injury rates from other companies in their industry to improve their safety programs. Employers should use this data to find injury rates higher than average for comparable firms in their industry.

Anti-retaliation Provisions

Employees have the right to report injuries and illnesses sustained at work without retaliation. The employer’s procedures for employees to report injuries must be easy to and not discourage or deter employees from reporting.

Employers are prohibited from retaliating against workers for submitting workplace injuries and illnesses. Retaliation was already prohibited under the recordkeeping rule, but OSHA couldn’t act unless an employee filed a complaint within 30 days of retaliation, be it termination of employment or some other type of discrimination.

Under the new rule, OSHA can cite employers for retaliation without a complaint being filed or if an employer’s reporting procedure discourage employees from reporting through retaliation.

The new rule doesn’t prohibit employers from drug testing employees unless testing is used as a means of retaliation. Employers are free to drug test their employees to comply with state and federal laws.

The new rule also doesn’t prohibit employers from establishing safety incentive programs unless they are used to deter or discourage workers from reporting accident injuries or illnesses. An example would be rewarding employees for going a specified number of days without an injury or completing a project without any injuries or illness reported in order to maintain an accident-free record to earn the incentive.

OSHA has outlined the following bullet points defining the types of retaliation that are prohibited as part of the new rule:

  • Discharge, demotion or denying a substantial bonus or other significant benefit
  • Assigning the employee “points” that could lead to future consequences
  • Demeaning or embarrassing the employee (for example, requiring an employee who reports an illness or injury to wear a fluorescent orange vest for a week)
  • Threatening to penalize or otherwise discipline an employee for reporting
  • Requiring employees to take a drug test for reporting without a legitimate business reason for doing so
  • See Chapter 3 of the Whistleblower Investigations Manual, CPL 02-03-007 (01/28/2016), for additional examples of adverse action

What’s Next?

At this point, there is still some uncertainty surrounding the future of the rule. Establishments that are required to submit records on December 1 should start preparing to do so and familiarize themselves OSHA’s Injury Tracking Application. Even if OSHA revises or removes some of the provisions, it doesn’t appear likely that the requirement for electronically submitting records will disappear.

A lawsuit challenging the rule was filed in the U.S. District Court for the Western District of Oklahoma back in January. That litigation was stayed in July as OSHA reviews the new rule. As part of the stay, the Department of Justice is required to submit status reports to the court every 90 days with the last one coming on October 10.

The most likely scenario is that OSHA removes the provisions regarding publicly reporting the information submitted by establishments. The agency may also make changes to the anti-retaliation provisions of the new rule. As stated earlier, employers were already prohibited from retaliating against employees for filing injuring and illness reports. Those two provisions garnered the most opposition from employers and industry trade groups.

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