OSHA's New Recordkeeping Rule is Here- Do your Recordkeeping Procedures Comply with the New Provisions?

Date: May 17, 2016

On May 12, 2016, the Occupational Safety and Health Administration (OSHA) published its Final Recordkeeping Rule titled – Improve Tracking of Workplace Injuries and Illnesses- to the Federal Register. OSHA’s Final Rule amends the current recordkeeping regulations to include 1) additional reporting obligations for covered employers; 2) procedures for informing employees of their right to report work-related injuries and access the company’s injury and illness data; and 3) restrictions on employment procedures that are related to or could potentially discourage injury and illness reporting.

Although OSHA’s Final Rule details electronic reporting requirements that are similar to the requirements originally proposed in the Administration’s November 8, 2013 Notice of Proposed Rulemaking (NPRM), the Final Rule differs significantly from the proposed rule. As described in the NPRM, OSHA proposed to have employers electronically submit recordable injury and illness data to provide a more efficient mechanism for the Administration to track workplace accidents. The NPRM also proposed to make the submitted injury and illness data publicly available on grounds that publicizing the information would lead to enhanced workplace safety and health.

Many employers responded negatively to OSHA’s proposed rule. Some employers challenged OSHA’s proposal by arguing that the Occupational Safety and Health Act (OSH Act) had not envisioned OSHA’s publication of injury and illness statistics; publication of injury and illness data violated numerous common law principles of privacy and confidentiality; and publication of the data resulted in public shaming of employers thereby eliminating OSHA’s longstanding “no fault” assumption for workplace injury and illness data. Conversely, some labor representatives responded by agreeing with OSHA that the publication of workplace injury and illness data would be beneficial, but argued that additional regulatory protection needed to be included in the rule for employees who reported workplace accidents from retaliation.

In response to these comments, OSHA published a Supplemental NPRM in August of 2014, which suggested that the Administration was considering adding provisions to the recordkeeping rule that prevented employers from “adopting unreasonable requirements for reporting injuries and illnesses and retaliating against employees who report injuries and illnesses.” The Supplemental NPRM further illuminated OSHA’s institutional belief that certain employment procedures, such as safety incentive programs and drug and alcohol testing, have the potential to discourage employee reporting, and, in turn, prevent accurate employer reporting of workplace accidents and injuries. OSHA’s Supplemental NPRM did not however, clarify what procedures would be considered impermissible under the proposed recordkeeping rule, nor did it provide any evidence of these programs having an effect on employee reporting or the accuracy of employer reporting. Instead, the Supplemental NPRM did little more than make an unsubstantiated allegation that some workplace activities could deter or discourage employee reporting. Further, OSHA only vaguely stated that an employer’s procedure would be in violation of the rule if it discouraged or deterred employee reporting.

Many commenters responded to the Supplemental NPRM with noted concern over the expansive scope of OSHA’s proposed rule. The Supplemental NPRM’s overly broad and vague language prevented commenters however, from fully discussing the effect of OSHA’s proposed rule. Most commenters therefore suggested that OSHA needed to provide a more concrete proposal before moving forward with a final rule. Some commenters also explicitly challenged OSHA’s adoption of any rule that would ban or otherwise discourage the use of disciplinary policies, safety incentive programs, or post accident drug and alcohol testing under the hypothetical belief that these programs deter or discourage employee reporting because OSHA had not considered the overall value of these practices. Some of these commenters further questioned the wisdom of OSHA’s prohibition of these procedures when some state workers compensation and employment laws specifically require employers to have such programs in place.

In its Final Rule, OSHA largely glosses over comments submitted in response to both the NPRM and Supplemental NPRM and moves forward with its plan to track workplace injuries and illnesses electronically by requiring:

1.      Employers with 250 + employees to submit the information from OSHA forms 300, 300A and 301 electronically on an annual basis; and

2.      Employers with 20-249 employees that are in a “high hazard” industry, such as manufacturing and construction, to submit the information from OSHA form 300 A electronically on an annual basis.

The implementation of these reporting requirements will be staggered. For the first reporting period, which has a deadline of July 1, 2017, all covered employers required to electronically submit 2016 data will only need to submit the information from OSHA form 300A. For the second reporting period, which has a deadline of July 1, 2018, covered employers with 250+ employers must submit information from OSHA forms 300 and 301 in addition to the information from the 300A.

OSHA’s Final Rule also introduces new provisions, which were not addressed in either the NPRM or Supplemental NPRM, for communicating injury and illness data to employees and providing employees with access to the company’s OSHA recordkeeping logs. Lastly, OSHA’s Final Rule requires that employers’ recordkeeping procedures be “reasonable” and not “deter or discourage” injury and illness reporting. These provisions go into effect on August 10, 2016.

Although not prohibited explicitly, OSHA’s Final Rule makes a number of sweeping statements regarding the permissibility of disciplinary programs, drug and alcohol testing, and safety incentive programs, which suggest that many of these procedures will be heavily scrutinized and likely found invalid. Disciplinary programs that result in discipline of an employee for failing to immediately report an injury or illness that is work-related and “blanket” drug and alcohol testing policies will specifically be considered to violate the rule because OSHA believes these programs have the potential to discourage employee reporting. Safety incentive programs will similarly be considered impermissible when an employee would reasonably be deterred from reporting a workplace accident in order to receive an incentive. OSHA also states that if incentive programs are going to be used, the incentive should be based on leading indicators (i.e., safety training), rather than lagging indicators (i.e., injury and illness reporting).

During a stakeholder meeting announcing publication of the Final Rule, OSHA acknowledged the uncertainty created by the Final Rule’s prohibition on certain recordkeeping procedures. To alleviate this uncertainty, the Administration intends to clarify the procedures that will be considered acceptable under the new recordkeeping rule in either an enforcement directive or guideline, which will be published prior to August 10, 2016. However, given the contention over the potential impact of injury and illness data being made publicly available and the extensive scope of OSHA’s prohibition on employment procedures that could potentially deter or discourage employee reporting, there may be a number of judicial challenges to the rule before then that also impact its implementation. Stay tuned!

For more information on OSHA’s regulations and enforcement initiatives, or for assistance with OSHA compliance, investigations, or litigation proceedings, contact any member of Keller and Heckman’s Workplace Safety and Health Team.