by Michelle Ferber and Ben McDonald
The Occupational Safety & Health Administration (“OSHA”) has always required employers to document and retain records of workplace injuries and illnesses. Beginning January 1, 2017, however, large employers and employers in certain high-risk industries will be required to electronically submit those records to OSHA which will then make that information publicly accessible. While OSHA states that this policy will “nudge” employers to focus more on workplace safety, employers are understandably concerned about what other effects may result.
While retaliation against those who report workplace injuries has always been prohibited, the new regulations seek to encourage reporting of injuries by requiring employers to provide notice to employees of the prohibition against retaliation. This notice can be accomplished by OSHA’s “Job Safety and Health — It’s The Law” worker rights poster from April 2015 or later. That poster is available through the link at the bottom of this page. Moreover, employers are now required to maintain injury reporting policies that are “reasonable” and that do not deter employees from reporting injuries. The addition of this reasonableness standard means that even if an employer has an injury-reporting policy in place, OSHA can investigate the policy to determine whether it in fact does encourage reporting and discourage non-reporting. Though the electronic reporting requirement does not go into effect until 2017, this anti-retaliation policy becomes effective this year on August 10, 2016.
One of the most profound aspects of the new regulation is that OSHA can now independently investigate and prosecute alleged retaliation even without the employee filing a complaint, as was required previously. Furthermore, with access to the workplace injury and illness data, OSHA compliance officers will be able to look at an employer’s data and issue citations for willful workplace safety violations on the basis that the particular employer had not done enough to prevent injuries similar to those that have occurred in the past.
OSHA has indicated that it will sanitize the information received from employers to ensure worker anonymity, but some commentators are skeptical as to how effective OSHA’s automated software system will be at ensuring that no personally identifiable information becomes public. Even without personally identifiable information, with smaller companies it may still be possible to analyze the publicly available information to determine the identities of those injured on the job. Some therefore argue that OSHA’s new regulations could actually discourage employees from reporting injuries out of the fear of being identified when OSHA makes the information publicly available. Furthermore, it is unclear how liable employers could be in cases where private employee information becomes publicly available.
Employers with 250 or more employees in industries covered by the recordkeeping regulations must submit information from their 2016 Form 300A by July 1, 2017, and submit information from their 2017 forms 300A, 300, and 301 by July 1, 2018. Thereafter and beginning on March 2, 2019, these employers must submit their information by March 2 of each year. Employers with 20-249 employees in certain high-risk industries must submit information from their Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Then, as with employers of 250 or more, these employers must submit their information by March 2 of each year. The industries OSHA has categorized as high-risk industries are numerous and include industries one would expect to be categorized as high-risk, as well as some that would surprise most. For example, OSHA has categorized manufacturing and construction as high-risk industries, but has also categorized grocery stores, dry-cleaners, and nursing care facilities as high-risk industries. Employers should consult the regulations to determine whether their particular industry is considered as a high-risk industry by OSHA.
To protect themselves, employers required to report such data that may become publicly available should take great care to ensure that the data they provide to OSHA does not include any information that could result in the exposure of confidential personnel information. This means that employers not only should obviously exclude names, addresses, and other identifying information, but also refrain from providing other pieces of information that could possibly be combined to identify a particular injury sufferer.
Employers are also encouraged to either craft workplace injury policies or review their current injury reporting policies to ensure that they meet the new standards required by OSHA. This means scrutinizing policies that may encourage underreporting. For example, under the new reasonableness and non-deterrence standards, posting a workplace sign that indicates how many days have passed since a workplace injury could theoretically be interpreted as placing pressure on employees not to report injuries out of the fear of being the employee who ruined the good record. Until the new regulations are enacted and OSHA begins to exercise its new authority to independently investigate, it is difficult to predict exactly how the new regulations will be enforced.
Link to OSHA’s “Job Safety and Health — It’s The Law” worker rights poster: https://www.osha.gov/Publications/poster.html
DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.