Presented by the Employment Law Practice Group

Legal Updates for Employment Law - Special Alert

July 1, 2016

OSHA’s New Rule on Injury and Illness Reporting & Anti-Retaliation May Leave Employers Feeling Sick

By David J. Oberly, Esq.

Despite considerable opposition from employers, the United States Occupational Safety and Health Administration (OSHA) has issued its new regulatory rule expanding employers’ requirements for reporting and submitting workplace injuries and illnesses and making such records publicly available. The rule also provides several anti-retaliation components bestowing additional protections on employees involved with reporting work-related injuries and illnesses, and it provides the agency with enhanced investigation and enforcement measures to be utilized in reporting work-related incidents. Key concerns for employers may include the following.

Electronic Reporting Requirements: 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 a company’s injury data is available to the public.

Electronic Submission of OSHA Forms: The new rule dictates that Form 300, Form 301 and Form 300A must be submitted 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. For a selection of companies (20-249 employees) in certain industries that OSHA considers highly hazardous—primarily those involving utilities, construction, manufacturing, retail, transportation and healthcare—Form 300A must be submitted annually.

OSHA Employee Injury and Illness Database: The new rule also provides that the injury and illness data from employer submissions 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 individual employers’ 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.

Anti-Retaliation Provisions: The new rule places additional notification burdens on employers to inform all employees 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. Significantly, the new anti-retaliation provisions provide for new and enhanced inspection and enforcement measures that 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.

Post-Incident Drug Testing and Safety Incentive Programs: The new rule bars 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. Drug policies should limit testing in connection with work-related incidents to those situations in which a worker’s 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. Safety incentive programs 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.

Questions about OSHA’s new rule may be directed to Ronda O’Donnell or David Oberly. A more comprehensive article on this topic will be published in the September issue of Marshall Dennehey’s newsletter, Defense Digest.

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