OSHA’s New Electronic Recordkeeping Rule Also Impacts Employee Injury Reporting Policies and Drug Testing Programs

Overview: The Occupational Safety and Health Administration (OSHA) issued a final rule that will require covered employers to electronically report work-related injuries and illnesses and requires all employers to develop and inform employees of injury and illness reporting policies.

Effective Date: The employee injury reporting requirements are effective August 10, 2016. The requirements relating to the electronic submission of recordkeeping forms become effective January 1, 2017 and thereafter.

The Details

OSHA’s final electronic recordkeeping rule, “Improve Tracking of Workplace Injuries and Illnesses,” was published in the Federal Register on May 12, 2016 and has two main elements: electronic record reporting and employee injury and illness reporting requirements.

1. Electronic Submission of Injury and Illness Reports by Employers Covered under the Record Keeping Requirements

Currently, employers with more than ten employees and whose establishments are not classified as a partially exempt industry must record work-related injuries and illnesses using OSHA Forms 300, 300A and 301, available here. Partially exempt industries include establishments in specific low hazard retail, service, finance, insurance or real estate industries.

Employers that are required to keep Form 300, the Injury and Illness log, must post Form 300A, the Summary of Work-Related Injuries and Illnesses, in the workplace every year from February 1 to April 30. Current and former employees, or their representatives, have the right to access injury and illness records. Employers must give the requester a copy of the relevant record(s) by the end of the next business day.

The final rule requires electronic submission of records to OSHA depending on the employer’s size and industry:

• Employers with 250 or more employees (including part-time, seasonal or temporary workers) in each establishment must electronically submit their OSHA 300, 300A and 301 forms to OSHA on an annual basis;
• Employers with more than 20 but less than 250 employees in certain high risk industries must electronically submit their 300A form on an annual basis;
• Employers who receive notification from OSHA must electronically submit their 300, 300A and 301 forms to OSHA.

OSHA will then post the data from employer submissions on a publically accessible website. According to the final rule, OSHA does not intend to post any information that could be used to identify individual employees.

The new rule does not change the categories of employers required to maintain reports.

Employee Injury Reporting Policies

The final rule requires employers to develop employee injury and illness reporting requirements that met specific criteria. Specifically, employers must inform employees of the following:

Procedures for reporting work-related injuries and illnesses promptly and accurately. According to the final rule, a procedure is not reasonable if it would deter or discourage employees from reporting injuries or illnesses;

Employees have the right to report work-related injuries and illnesses;

Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses.

In the proposed rule, OSHA suggested that safety incentive policies and post-accident drug testing could be considered practices that would discourage employees from reporting work-related injuries or illnesses and therefore could be discriminating practices. In the final rule OSHA explains, “[T]he final rule does prohibit employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. To strike the appropriate balance here, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

Regarding incentive programs, OSHA states, “Employee incentive programs take many forms. An employer might enter all employees who have not been injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such program might be well-intentioned efforts by employers to encourage their workers to use safe practices. However, if the programs are not structured carefully, they have the potential to discourage reporting of work-related injuries and illnesses without improving workplace safety.”  “[T]o the extent incentive programs cause under-reporting, they can result in under-recording of injuries and illnesses, which may lead to employer liability for inaccurate recordkeeping. The latter concern is what is being addressed by this final rule’s prohibition on employers using incentive programs in a way that impairs accurate recordkeeping.”

Effective Dates

There are two effective dates in the final rule. The most immediate effective date will be August 10, 2016, for the provisions regarding employee injury reporting policies. All employees must be advised that they have a right to report a work-related injury and of the prohibition from discharging or otherwise discriminating for reporting work-related injuries or illnesses. Make sure you post the April 2015 or later version of the OSHA Job Safety and Health-It’s the Law poster.

The requirements relating to the electronic submission of recordkeeping forms become effective January 1, 2017. Establishments with 250 or more employees must submit information from their 2016 form 300A by July 1, 2017. And starting in 2018, these same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2. Establishments with 20 or more but less than 250 employees in designated industries must submit information from their 2016 form 300A by July 1, 2017, and their 2017 form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

According to OSHA, those states that operate under a state OSHA plan will have to adopt requirements that are substantially similar within six months.

Additional information regarding the final rule can be found on OSHA’s website. OSHA has provided a specific “resource page” regarding the final rule.

Next Steps

OSHA has indicated that they will provide additional information for employers regarding this new rule. We will keep you up to date on new developments.

Employers with drug testing programs that include post-employment testing should consider waiting until more guidance is published before making changes to their policy.