OSHA recently implemented new regulations that will impact covered employers beginning on August 10, 2016. These new regulations will require electronic submission of injury and illness records, and they contain anti-retaliation provisions. (Link 1; Link 2)

The new rule requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms. This rule takes effect January 1, 2017 for submitting calendar year 2016 information.  The new reporting requirements will be phased in over two years.  Establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit information from their 2016 Form 300A by July 1, 2017.  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 20-249 employees in certain high-risk 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.  Upon receipt, OSHA intends to post portions of these records on the OSHA website, although OSHA has indicated that no employee personal identifying information will be made public.  OSHA’s comments to the rule indicate that this public reporting is expected to have an impact on companies’ investors, consumers, contractors, and prospective employees, among others, because these groups are likely to better support companies with a strong safety track record.

The new rule also prohibits employers from discouraging workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.  The preamble to the rule states that what is “reasonable” is to be determined using an objective “reasonable person” standard.  These provisions become effective August 10, 2016.  This new rule is consistent with the anti-discrimination provisions already contained in the whistleblower provisions in the OSH Act but are different in that they authorize OSHA to issue a citation to an employer for a violation of the anti-retaliation provisions even where an employee has not complained about the employer’s actions.  Notably, OSHA specifically identifies an employer’s implementation of a drug testing policy as a potential retaliatory act, particularly where an employer has a blanket, mandatory post-incident testing policy that results in all employees being tested, even after accidents where the use of drugs or alcohol are unlikely to have any relationship to the injury or illness.  In such a situation, OSHA is concerned that an employee may not report an injury for fear of being subject to testing.

OSHA State Plan states must adopt requirements that are substantially identical to the requirements in this final rule within six months after publication of the final rule.