United States: OSHA's Final Rule On Electronic Tracking Of Workplace Injuries And Illnesses

In keeping with Assistant Secretary of Labor Dr. David Michaels' promise to "shame" employers into compliance, on May 12, 2016, the Occupational Safety and Health Administration (OSHA) published its final rule on electronic reporting of workplace injuries and illnesses.1 Under this rule, OSHA will be publishing employer injury and illness records on the internet without any explanation of the facts and circumstances of the particular cases involved. Further, OSHA has changed the requirements for directing employees on reporting injuries and illnesses and assumed new authority to prosecute alleged retaliation against employees for reporting injuries and illnesses. Finally, OSHA takes the position that to ensure injury and illness reporting, employers must notify employees of their rights, and the agency must be able to police any program that might discourage reporting, such as employer safety incentive programs.

What Does the Rule Require?

Electronic Reporting

The new rule provisions on reporting, which take effect on January 1, 2017, require various employers to submit injury and illness data electronically. OSHA is requiring each and every establishment (i.e., each separate workplace) with 250 or more employees in industries covered by the recordkeeping regulation to submit information from their 2016 injury and illness recordkeeping Form 300A by July 1, 2017. The following year, these employers are required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and for every year thereafter, the information must be submitted by March 2. 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.

Establishments with 20-249 employees in specified "high-risk industries" – identified on a specific list and including all employers in the agriculture, utilities, construction, and manufacturing industries – must submit their Form 300A by July 1 in 2017 and 2018, and by March 2 every year thereafter. Because the information is kept and must be submitted by each establishment, many companies will be required to submit thousands of reports every year.

Those employers with establishments that are not required to submit records yearly may still be required to submit information upon OSHA's direction. 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. It remains to be seen whether these data collections will be part of inspection programs like the former Site Specific Targeting (SST) program.

Employee Involvement

The rule also changes employer obligations for ensuring employees report all work-related injuries and illnesses. 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. In addition, employers must keep in mind that OSHA is presently litigating a case against U.S. Steel asserting that any program requiring reporting sooner than seven days after the injury or illness is illegal because it would discourage reporting.

As set forth in the new rule, no employer procedure can deter or discourage a reasonable employee from accurately reporting a workplace injury or illness. In its explanation of the rule, OSHA expects this provision will allow it to regulate employer safety incentive programs, which the agency believes interfere with reporting injuries and illnesses.

After establishing the procedure for reporting work-related injuries and illnesses, employers must inform each employee about it. OSHA does not formally call this training or an educational program, but it is clear an employer will need to be able to prove its employees received the information. Specifically, the employer must tell all employees: (A) they have the right to report work-related injuries and illnesses; and (B) a company is prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses.

Anti-Retaliation Protections

The new rule also expressly prohibits retaliation for reporting a work-related injury or illness. In a new section of regulations, OSHA sets itself up as the arbiter of retaliation through citation enforcement for any employee who files a safety and health complaint, asks for access to the part 1904 injury and illness records, or exercises any rights afforded by the Occupational Safety and Health Act (OSH Act).

Why is the Rule Problematic?

The Rule is Inconsistent with the OSH Act

Nowhere in the OSH Act has Congress authorized OSHA to publicize establishment-specific injury and illness records outside of the employer's own workplace. Although Congress gave the agency limited authority to create reporting requirements, for 40 years such information was provided to OSHA and the employer's own employees only; it was never disseminated to the public. In the proposed rulemaking record, OSHA expressly acknowledged the Confidential Information Protection and Statistical Efficiency Act of 20022 that prohibits the Bureau of Labor Statistics (BLS) from releasing establishment-specific data to the general public. Although the law is in fact applicable only to the BLS, the intent of the law is expressly stated to protect the confidentiality of the information OSHA now proposes to disclose. OSHA does not explain how its release of the information is consistent with the congressional mandate expressed in the law. In other actions, OSHA has argued that this information is confidential and should not be disclosed.3 Although in at least one case OSHA was ordered to disclose the Lost Work Day Illness and Injury (LWDII) rates, the court made no findings regarding disclosure of the actual numbers of cases in distinct categories or the actual number of hours worked, much less specific information on individual injury and illness cases. OSHA asserted that all items were confidential. The new final rule is an open invitation for mischaracterization and misuse of the records in ways Congress never intended.

OSHA is Eliminating Use of Equivalent Forms

OSHA's existing injury and illness recordkeeping rules allow employers to use forms equivalent to the Form 300, Form 301, and Form 300A, so long as same information is recorded.4 Many employers utilize equivalent forms – particularly insurance and accident investigation forms – in place of the Form 301. In requiring electronic reporting in a particular software format, OSHA is mandating the use of a specific form and eliminating the widespread use of equivalent forms by employers. This change has not been identified or evaluated (benefits, or lack thereof) under the Paperwork Reduction Act provisions applicable to this rulemaking. The incremental benefit (if any) of this rule is significantly outweighed by the increased paperwork duplication created by the use of mandatory forms and elimination of equivalent forms.

The Burden of Electronic Submission

OSHA's rule 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. OSHA previously acknowledged that 30% of the establishments responding to the 2010 recordkeeping survey did not submit data electronically.5 By way of explanation, OSHA noted, "for some of the establishments...it is difficult to submit data electronically. Most agencies currently allow non-electronic filing of information, and some businesses continue to use this option, despite strong encouragement by agencies to file electronically."6 That recognition is missing in the final rule.

OSHA further failed to explain how it will establish and maintain a confidential and reliable means of electronic submission by employers. The U.S. government famously failed to implement reliable website access for the Affordable Care Act when that was a major policy initiative with full funding. OSHA has received no additional funding or resources for implementing this new rule.

OSHA is Likely Discouraging Reporting and Recording

Many employers have expressed a legitimate concern that the new rule may discourage recording of cases. Knowing they will be scrutinized on this data by the agency, the public, potential customers, and competitors, and in order to protect their reputation, employers will likely be conservative in analyzing whether to record each and every case in their logs. Putting aside cases involving failure to record covered cases, the inescapable fact is that questionable cases might not be recorded. Further, knowing the impact of their injuries on their employers' ability to secure future work, employees may be incentivized by OSHA's new rule not to report cases to their employer.

The rule might also motivate employees not to report injuries and illnesses in order to protect their own privacy. Employees will recognize that their case will be reported on the internet, and even without their name appearing on OSHA's website, in small towns across America, their neighbors and co-workers will know to whom the entry refers. The overall effect of these changes will be to decrease (not increase) the amount of information on injuries and illnesses available to review and effectively create a safer workplace.

The "Supplemental" Amending of the Whistleblower Provisions

Although not included in OSHA's August 2014 proposed rulemaking, OSHA published a supplemental notice proposing to amend the rule to include a direct prohibition on retaliation. Section 11(c) of the OSH Act sets forth a specific procedure for the investigation of retaliation complaints with a procedure for enforcement through a federal lawsuit filed by the Department of Labor Solicitor's Office. However, section 11(c) does not provide for OSHA to establish a separate enforcement scheme where citations and penalties can be issued, nor does it allow OSHA to proceed without a complaint from an employee. Further, because the proposed rulemaking did not include any regulatory text or analysis of the rulemaking, there is a strong argument that this provision in the final rule has not been enacted properly under the OSHA rulemaking requirements.

Conclusion and Employer Actions

Although there are concerns about the new rule and its enactment will likely result in legal challenges, it is, for the time being, an official and final rule, with its requirements for procedures, employee information, and prohibition on retaliation becoming enforceable on August 10, 2016. Accordingly, employers should consider the following actions:

  • Review and revise procedure for employees to report work-related injuries and illnesses promptly and accurately;
  • Ensure procedures include OSHA's notice of the right to report and the assurance against retaliation;
  • Review and revise how the procedure is communicated to employees and update that communication for any revised procedure; and
  • Review all safety incentive programs to ensure they will not be alleged to deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.

Littler Mendelson's Workplace Safety and Health Practice Group will continue to monitor developments under this rule and provide timely updates.

Footnotes

1 OSHA, Improve Tracking of Workplace Injuries and Illnesses, 81 Fed. Reg. 29623 -29694 (May 12, 2016).

2 Pub. Law 107-347 (Dec. 17, 2002).

3 See, e.g., New York Times Co. v. U.S. Dept. of Labor, 340 F.Supp.2d 394 (S.D.N.Y. 2004).

4 29 C.F.R. §§ 1904.29(a), 1904.29(b)(4).

5 78 Fed. Reg. 67254.

6 Id. at 67273.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions