Employers Beware: New OSHA Injury and Illness Reporting & Anti-Retaliation Rule Greatly Expands Potential Liability for Employers

By David J. Oberly, Esq.*

Despite considerable opposition from employers, the United States Occupational Safety and Health Administration (OSHA) has issued a new regulatory rule expanding employers’ requirements for reporting and submitting workplace injuries and illnesses and making such records publicly available. In addition, the rule also provides several additional anti-retaliation components—bestowing additional protections to employees involved with reporting work-related injuries and illnesses and providing the agency with enhanced investigation and enforcement measures to be utilized by the agency in connection with the reporting of work-related incidents.

Regarding the report and submission of injuries, certain employers will now be required to electronically submit injury and illness data to OSHA. According to the agency, the purpose of the new reporting obligations is to “nudge” companies into placing a greater focus on workplace safety because, in the agency’s opinion, employers are more likely to do so if company injury data is available to the public.

Ordinarily, OSHA mandates that employers in most industries with a workforce of 10 or more employees compile records of work-related injuries and illnesses that occur on the jobsite through several OSHA forms, including Form 300 (Log of Work-Related Injuries and Illnesses), Form 301 (Injury and Illness Incident Report) and Form 300A (Summary of Work-Related Injuries and Illnesses). Now, beyond these ordinary requirements, employers are also required to submit these forms to OSHA in electronic format. For companies with a headcount at or above the 250-employee threshold, all three forms must be submitted electronically on a yearly basis. Moreover, for a selection of companies with a workforce numbering between 20 and 249 that operate in certain industries that OSHA considers highly hazardous—primarily those involving utilities, construction, manufacturing, retail, transportation and health care—Form 300A must be submitted annually. In addition, OSHA may also obtain information from employers who do not submit injury and illness data on a regular basis, but those employers would only be obligated to provide such data to OSHA upon request from the agency.

Beyond the electronic reporting requirements, the rule also provides that the injury and illness data from employer submissions compiled by OSHA will be posted publicly on the agency’s website. The public employee injury and illness database will be searchable so that interested parties can analyze an individual employer’s injury and illness rates. Importantly, OSHA has signaled its intent to utilize the data to target and investigate those companies that it feels have high employee injury and illness rates.

In addition, the recently released final rule also includes certain anti-retaliation provisions that apply to all employers and that allow OSHA to penalize employers for violating the recordkeeping and reporting provisions of the new rule. In this regard, the new rule places additional notification burdens on employers. To comply with the new rule, employers must inform each employee that they maintain the right to report work-related injuries and illnesses, that discrimination in response to the reporting of a work-related injury or illness is expressly prohibited, and that the company cannot discharge employees or otherwise discriminate against them in any form or fashion for reporting a work-related injury or illness. Employers must also inform each employee how to report a work-related injury or illness, as well as the procedure used by the company to report such incidents to OSHA. Moreover, employers must provide employees and their representatives access to injury and illness records. Finally, all employers are now required to create and implement an express reporting procedure for employees to report work-related injuries and illnesses promptly and accurately. Importantly, the procedure cannot have the effect of dissuading employees from reporting an on-the-job workplace injury or illness.

Significantly, the new anti-retaliation provisions provide for new and enhanced inspection and enforcement measures, which provide OSHA with a new tool to investigate and levy citations against employers for retaliatory practices on its own initiative, without the need to first receive an employee complaint. While OSHA already bars discrimination against an employee who reports a workplace injury or illness, until now OSHA has been unable to act until a worker submits a complaint. With the new rule, however, OSHA now has the ability to cite an employer for retaliation even in the absence of any employee complaint.

The rule gives OSHA a new tool and broad discretion to investigate and issue citations and penalties if the agency considers any part of an employer’s procedures for reporting a work-related injury and illness to be “unreasonable.” Unfortunately, what constitutes programs that “discourage” employees from coming forward and reporting on-the-job incidents is a subjective endeavor that is open to debate. While OSHA did not declare any policies unlawful per se, the agency indicated that certain policies are likely unlawful because they have the potential to discourage an employee from reporting an injury or illness: (1) policies providing for discipline if an employee fails to immediately report a work-related illness or injury; (2) certain safety incentive programs; and (3) blanket policies that require drug and alcohol testing for all workplace accidents or injuries.

With respect to post-incident drug testing, while the agency acknowledges that the new rule does not prohibit drug testing across the board, it does bar employers from using drug testing or the threat of drug testing as a form of retaliation against workers who report on-the-job injuries or illnesses. In order to conform with the new rule, drug policies should limit testing in connection with work-related incidents to those situations in which worker drug use is likely to have played a role in contributing to the event and for which a toxicology screen can accurately identify impairment resulting from drug use. Also, with respect to jobsite safety incentive programs, OSHA has noted that an incentive program will run afoul of the new anti-retaliatory scheme if the program discourages workers from reporting injuries or illnesses by denying a benefit to those individuals who disclose such incidents. As just one example, OSHA posits that an employer may be in violation if it excludes a worker from obtaining a financial incentive (such as a bonus) as a consequence of reporting a work-related incident. As a result, under the new anti-retaliatory provisions, incident programs must be “structured in such a way as to encourage safety in the workplace without discouraging the reporting of injuries and illnesses.”

There are several key takeaways for employers who wish to steer clear of violating OSHA’s new recordkeeping and reporting requirements. At a minimum, employers must become familiar with the new electronic reporting requirements promulgated as part of the new rule and determine what form(s) they must now submit electronically on a yearly basis, which is determined based on an employer’s size and industry. Equally as important, employers must also take care to fully understand the new rule’s anti-retaliation requirements, which are almost certain to cause a new flurry of discrimination complaints, investigations and lawsuits. Furthermore, as is always the case when new rules and regulations are promulgated, company management and human resources personnel should be properly educated and trained on the new OSHA anti-retaliation requirements. In addition, those employees who are responsible for injury and illness recordkeeping and reporting should also be educated and trained on the new rule. Companies should also review their OSHA workplace postings and guidelines to ensure that employees are properly informed of their rights, which have been significantly augmented under the new rule. Finally, employers should review and analyze both their drug testing policies, as well as their safety incentive programs, to ensure that no hidden deterrents exist that could be viewed by OSHA as deterring or impeding employees from reporting on-the-job injuries or illnesses and that the policies and procedures comply with OSHA’s new requirements.

*David, an associate in our Cincinnati, Ohio office, can be reached at djoberly@mdwcg.com or 513.372.6817.

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_{Defense Digest, Vol. 22, No. 3, September 2016. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2016 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}