United States: New OSHA Requirements For Employee Involvement And Employer Recordkeeping Take Effect Over The Next Two Months

Earlier this year, the Occupational Safety and Health Administration (OSHA) issued its final rule to Improve Tracking of Workplace Injuries and Illnesses.  The new rule has two components – one relating to employee involvement, which takes effect on December 1, 2016, and the other relating to employer recordkeeping, which will be effective January 1, 2017.

Employee Involvement

The employee involvement provisions of the final rule are threefold and require employers to ensure all of the following:  (1) the procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting; (2) employees must be informed of their right to report work-related injuries and illnesses free from retaliation; and (3) employers may not retaliate against their employees for reporting work-related injuries or illnesses.

But, practically, what do these requirements mean for employers come December?  We'll address the impact of each provision below, starting with the provision that likely affects employers the most.

Reasonable Reporting Procedure That Does Not Discourage:

Although employers were always required to establish a means for employees to report a work-related injury or illness, the new rule explains that the procedure must not deter or discourage an employee from reporting.  This means that the employer's procedure must be in writing and it must be understandable to a reasonable employee.  There should not be any onerous reporting requirements, such as traveling a significant distance or contacting multiple levels of management to make a report.

However, the rule's most significant impact relates to an employer's ability to require post-incident drug testing.  Because OSHA claims post-incident drug testing may discourage employees from reporting, under the new rule, an employer may only conduct post-incident drug testing if there is a reasonable possibility that the employee's drug use could have contributed to the injury or illness.  This means that it will be problematic if an employer automatically requires all employees to submit to a post-incident drug test.  Instead, the particular incident will have to be reviewed to determine whether it could be related to drug use by the employee.

OSHA has attempted to explain this seemingly vague requirement with a few examples.  According to OSHA, if an employee is injured as an innocent bystander, it may be a violation if the employer requires the employee to submit to a post-incident drug test.  By contrast, the employer might not be in violation if it requires a post-incident drug test for an employee who was injured while operating a crane or forklift if the employee's conduct contributed to the injury.  Additionally, employers must ensure that any drug testing is performed at a time and in such a manner as to reveal evidence of alleged impairment.  Of note, employers will still be able to drug test all employees who report a work-related injury if the drug testing is conducted pursuant to a state workers' compensation law (or to an identical private policy), whether the law is voluntary or mandatory.

Ensuring Employees Are Informed:

After a reasonable procedure is in place, employers must ensure their employees are informed of their right to report.  OSHA does not provide a specific means to accomplish this requirement, but there are a few simple options that could suffice.  Employers can post the current version of the OSHA poster or they can provide a written or e-mail notice to each employee.

Anti-Retaliation Provision:

Although retaliation has always been prohibited, OSHA is now permitted to issue citations to employers who retaliate against their employees for reporting an injury or illness.  This anti-retaliation provision also impacts an employer's ability to enforce certain disciplinary and incentive programs.  The rule prohibits disciplining employees simply because they report work-related injuries or illnesses without regard to the circumstances of the injury or illness, such as automatically suspending workers who report an injury or assigning them points with future employment consequences.  Similarly, employers cannot use incentive programs in a manner that penalizes workers who report work-related injuries or illnesses.  For example, employers may be in violation if they automatically cancel an incentive program based on an employee reporting an injury, without regard to whether the injury violated a legitimate work rule.

With the final rule becoming effective next month (after enforcement has been delayed several times as a result of legal challenges), now is the time for employers to review their policies and procedures relating to reporting work-related injuries, including any automatic drug-testing requirement.  And it is now more important than ever that employers ensure they are in compliance since, as we explained last year, OSHA is now authorized to significantly increase its civil penalties.

Employer Recordkeeping

Although not as immediate as the employee involvement provisions, the employer recordkeeping provisions are also important to review.  The provisions require employers to electronically submit injury and illness data to OSHA, with data now being posted to OSHA's website for public view.

Effective January 1, 2017, establishments with at least 250 workers must annually submit to OSHA data from their OSHA Forms 300, 300A and 301 electronically.  The 2016 Form 300A must submitted by July 1, 2017.  Establishments with 20 to 249 employees in certain high-hazard industries (including agriculture, utilities, construction, and manufacturing) must also electronically submit information from their OSHA Form 300A, with the 2016 form due by July 1, 2017.

Thus, employers should now begin to compile their 2016 data so that they are prepared to submit it electronically by the due date.

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.

Events from this Firm
24 Oct 2017, Seminar, Los Angeles, United States

Presented by The American Bar Association White Collar Crime Committee.

24 Oct 2017, Conference, Los Angeles, United States

Corporate transactions are not just in the domain of M&A corporate attorneys. This program will cover the important role of employment and benefits counsel in shaping mergers and acquisitions. The presenters will provide practical guidance on conducting due diligence of labor, employment, employee benefits and executive compensation arrangements of target companies.

25 Oct 2017, Business Breakfast, New York, United States

Please join us for a complimentary breakfast program and networking with private equity investment banking professionals to discuss private equity activity and prospective deal flow opportunities in the technology industry.

In association with
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.