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Remember Your Safety P’s and Q’s – OSHA Issues New Reporting and Anti-Retaliation Regulations

7/11/16

By:  Agne Krutules

On May 12, 2016, the Occupational Safety and Health Administration (“OSHA”) issued its final rules on discrimination and injury and illness reporting.  81 Fed. Reg. 29624.  The new anti-discrimination and anti-retaliation rules go into effect on August 10, 2016.  The electronic reporting requirements become effective on January 1, 2017.

I.  Electronic Reporting Requirements

Under the new rule, certain employers will be required to electronically submit to OSHA the injury and illness data contained in their various OSHA logs. The new rule applies to two categories of employers: (1) all employers with 250 or more employees; and (2) employers with 20 to 249 employees in specific “high-risk industries.” (A list of high-risk industries can be found at https://www.osha.gov/recordkeeping/NAICScodesforelectronicsubmission.pdf).

The first category of employers is required to electronically submit OSHA 300 Logs, 301 Forms, and 300A summaries annually.  The second category of employers is required to submit OSHA 300A summaries annually.  These new requirements will be phased in, whereby employers will have to electronically submit their 300A summaries on July 1, 2017, and their 300 Logs, 301 Forms and 300A summaries on July 1, 2018.  Beginning in 2019, the information will have to be submitted by March 2 each year.

The information provided to OSHA will be available to the general public on the OSHA website.  Although OSHA allegedly will remove all the personally identifiable information from the forms, such as the employee’s name, address, and work title, OSHA’s reliance on a computer system to identify every piece of identifiable information is risky and increases the potential for a possible data breach. The public access to the injury and illnesses data also could impact the unionization process, as unions could target employees at the companies with high work related injury rate.

Previously, OSHA obtained this information from employers only during inspections or as part of its annual sampling of certain employers.  Under the new rule, the companies with high incident rates will be easily identified and could become subjects of OSHA inspections.

II.  Employee Reporting Requirements and Drug Testing

The new rules also change employer obligations for ensuring that employees report all work-related injuries and illnesses.  All employers, regardless of size, must develop employee injury and illness reporting requirements that meet certain criteria.  Specifically, the final rule requires employers to inform employees of their right to report work-related injuries without fear of retaliation.  Also, employers must ensure that the method for reporting work-related injuries is reasonable and does not deter or discourage employees from reporting.  In addition, according to OSHA, a policy must allow for reporting within a reasonable time after the employee realized that he or she had suffered a work-related injury, rather than just immediately following the injury.

In addition, the new rule prohibits mandatory post-accident drug testing because such testing discriminates against employees on the basis of their injury or illness reporting.  OSHA instructs employers to limit drug testing to situations where an employee drug use was a likely factor in the incident.  OSHA explains with examples that it “would likely not be reasonable to drug test an employee who reports a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.”  While OSHA’s reasoning that a drug test is a form of an “adverse employment action” may not be upheld in federal courts, employers should be mindful of their policies and revise them to comply with the new regulations.

These new rules become effective on August 10, 2016, for all employers.

III.  New Retaliation Investigation Rules

OSHA now takes the position that its compliance officers can issue citations to employers who discipline workers for reporting injuries and illnesses when there is insufficient evidence that a workplace safety rule has been violated.  OSHA’s interpretation overturns the agency’s longstanding statutory framework for retaliation complaints in which specialized investigators determined whether retaliation had occurred.  It is unclear whether OSHA compliance officers will be provided formal training in employment discrimination law.  It is expected this new OSHA’s direction will result in additional unfounded retaliation citations.

This new rule becomes effective on August 10, 2016, for all employers.

IV.  Legal Challenge to the New OSHA Rules

On July 8, 2016, a coalition of companies and business groups filed a lawsuit in the District Court for the Northern District of Texas, challenging the new rules that take effect on August 10, 2016.  The case is TEXO ABC/AGC v. Labor Department, Case No. 16-01998 (N.D. Tx. July 8, 2016).  The plaintiffs seek an injunction to stop their implementation pending resolution of litigation.