New OSHA Worker Protections Are Around the Corner: Are You Ready to Comply?

The federal Occupational Safety and Health Administration (“OSHA”) issued a final regulation in May that establishes new electronic recordkeeping and reporting requirements. The overall purpose of the new regulation is to reinforce anti-retaliation protections for employees who report workplace injuries and illnesses. Electronic reporting requirements under the new rule go into effect on January 1, 2017, but employers must comply with the rule’s anti-retaliation provisions by August 10, 2016.

Anti-Retaliation Requirements:

The anti-relation provisions include three primary requirements:

• First, employers must inform employees of their right to report work-related injuries and illnesses without retaliation. This obligation may be met by conspicuously posting the “OSHA Job Safety and Health — It’s The Law” worker rights poster from April 2015 or later (see https://www.osha.gov/Publications/poster.html) in the employer’s workplace.

• Second, an employer’s procedure for employees to report work-related injuries and illnesses must be reasonable and must not deter or discourage reporting. In particular, OSHA has noted concerns with policies that mandate an “immediate” report of an event causing a workplace injury and that allow discipline for not making an immediate report. OSHA’s concern stems from the fact that not all injuries come from one specific event or manifest immediate and complete symptoms. For example, in emphasizing its concern about “immediate” reporting obligations, OSHA referenced a case in which an employer disciplined “a worker [who] reported shoulder and neck pain that developed gradually due to work-related repetitive motions beginning one week earlier.” According to OSHA:

Although there was no single incident that precipitated the injury, the worker received a “final warning” for failure to “timely report an injury.” This policy was not reasonable because it did not allow for reporting within a reasonable time after the employee realized that he or she had suffered a work-related injury.

To comply with OSHA’s “reasonableness” requirement, the employer should consider whether their written policies allow employees sufficient time to identify and assess injuries before requiring a report. 

• Third, the new regulation expressly provides that an employer may not retaliate against employees for reporting work-related injuries or illnesses.

Electronic Recordkeeping Requirements:

The other aspect of the new OSHA rule relates to recordkeeping. Specifically, effective January 1, 2017, certain employers will be required to report workplace injury and illness data electronically to OSHA. The new rule does not require employers to collect new or different information, but instead imposes new requirements for how and what information is reported to OSHA. The mandate and content of an employer’s electronic submissions depend on the size and industry of the specific workplace (or “establishment”). In general, establishments with 250 or more employees who are subject to OSHA’s recordkeeping regulation will have to submit data electronically. Establishments with 20-249 employees in certain high risk industries, such as construction and manufacturing, will also need to make electronic submissions. Establishments with fewer than 20 employees at all times during the year do not have to routinely submit information electronically to OSHA.

OSHA intends to post the electronic data that it gathers under the new rule on a publicly accessible website. According to the agency,

[r]eleasing the data in standard, open formats will:

Encourage employers to increase their efforts to prevent worker injuries and illnesses, and, compelled by their competitive spirit, to race to the top in terms of worker safety; and

Enable researchers to examine these data in innovative ways that may help employers make their workplaces safer and healthier and may also help to identify new workplace safety hazards before they become widespread.

OSHA is hoping that competition will drive employers to create safer workplaces. For extra insurance, OSHA’s maximum penalties will increase by 78 percent, effective August 1, 2016. Whether by carrot or stick, shame or punishment, OSHA is trying hard to get employers’ attention and, if you weren’t already paying attention, it is time to start!