The federal Occupational Safety & Health Administration (OSHA) issued a Final Rule on May 12, 2016 that requires certain employers to annually submit injury and illness data electronically to OSHA. OSHA will then make such data publicly available as part of its effort to “nudge” employers to improve workplace safety. The Final Rule also requires employers to (a) inform employees of their right to report injuries and illnesses without retaliation, and (b) establish “reasonable procedures” for internal reporting of injuries and illnesses.
Rule Coverage
- Under the new Rule, employers with 250 or more employees at any one “establishment” will be required to submit annually the injury data for such an establishment online. These employers are required to report this data by submitting OSHA Form 300 (running injury log), Form 300A (annual summary of injuries) and Form 301 (detailed incident and injury reports) through an OSHA-provided website.
- Employers from previously exempt, low-hazard industries (such as retail, finance and insurance) remain exempt from this electronic-submission requirement, even if they employ more than 250 employees at one establishment.
- Employers in some industries with historically-high injury rates must comply with this new Rule, even if they do not employ 250 employees at any one establishment (unless each establishment employs less than 20 employees). The Rule identifies dozens of such industries, but some of the most important are construction, manufacturing, and warehousing and storage.
- Finally, employers with fewer than 20 employees at each of their establishments need to submit their injury data electronically only if specifically requested to do so by OSHA.
Public Posting
OSHA plans to post online the new electronic injury data it receives from employers. For this reason, employers are expected to remove personally identifiable information from their forms before submitting them electronically. OSHA hopes that public posting of this data will fuel employers’ “competitive spirit” and lead to a “race to the top” in worker safety. OSHA also expects that this public posting will lead to easier study of and research into workplace injuries, thereby leading to safer workplaces.
Compliance Schedule
While no employers are required to submit injury data in electronic format (versus data that employers are already required to record on their onsite OSHA injury and illness forms) until July 2017, the anti-retaliation protections and requirements regarding employee involvement in injury and illness reporting become effective August 10, 2016.
Further, the Final Rule phases in the new electronic-submission requirement.
- Employers with 250 or more employees at an establishment must submit information from their 2016 Form 300A by July 1, 2017 (i.e., one form only), and information from their 2017 Forms 300, 300A and 301 (i.e., three forms) by July 1, 2018. Beginning in 2019 and each subsequent year, information for all three forms will be due by March 2.
- Employers in industries with historically-high injury rates and 20-249 employees in at least one establishment must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and each subsequent year, the Form 300A information will be due by March 2.
“State Plan” states must issue similar electronic-submission regulations within the next six months. Employers in these states should stay posted for these new state-specific regulations.
Non-Retaliation and Internal Reporting
The Final Rule further protects employees from retaliation when they report injuries and illnesses to their employers. Specifically, under the new Rule, employers must proactively alert employees about their right to report injuries and illnesses without fear of adverse action (although posting of OSHA’s “Job Safety and Health – It’s the Law” poster satisfies this requirement). Employers must also establish “reasonable procedures” that do not discourage such reporting.
Given these obligations, employers should carefully review policies that tie perks or discipline to the absence or occurrence of accidents in the workplace to ensure compliance. Further, employers should educate employees on their right to report injuries and illnesses, free from discrimination and retaliation.
Additional Resources
OSHA issued a “Fact Sheet” that further explains these new regulations. Other resources are available on the OSHA website.
To learn how these new regulations affect your business, please contact the authors, your McGuireWoods contact, or a member of the firm’s labor and employment group.