New OSHA recordkeeping rule: Urgent need for employer review

Thanks to a new OSHA recordkeeping rule, employers urgently need to take a close look at their employee handbooks, safety policies and procedures, safety incentive programs, and drug testing policies.

The rule, which was issued late last week and goes into effect within 90 days, provides new means for employees to pursue claims that they have suffered retaliation for reporting safety concerns. This new rule is yet another effort by the agency to attempt to publicly shame employers, force them to change drug testing and safety incentive policies, and increase the classifications and penalties associated with OSHA citations. Employers should review their policies, procedures and programs to make sure they comply with the new anti-retaliation requirements.

Additionally, the new rule finalizes controversial requirements for all large employers and some smaller ones to electronically submit all required OSHA recordkeeping forms. OSHA ultimately intends to publish the forms on a searchable website open to the public. Of course, this raises a whole host of privacy, cyber-security, and other concerns.

Here is a more detail on these far-reaching changes:

Anti-Retaliation Provisions and Complaint Procedures

For years, OSHA has been claiming that employers often attempt to discourage the reporting of injuries by disciplining, drug testing, or taking other steps to discourage injured workers from reporting an injury. This despite the fact that there is no hard evidence to support such claims.  The new rule attempts to address these concerns by requiring employers to:

• Implement a reasonable procedure for employees to report work-related injuries and illnesses.
• Inform employees of the procedure for reporting work-related injuries and illnesses.
• Inform employees that they have the right to report work-related injuries and illnesses and that the employer is prohibited from retaliating against them for doing so.

 These new anti-retaliation provisions apply to all employers, regardless of whether they are required to electronically submit data under the new rule. They will take effect on or around August 12, 2016.

At first glance, these do not appear to be new obligations. The OSH Act has always prohibited employers from retaliating against employees for reporting injuries or making complaints about safety. A closer examination of the new rule, however, reveals that it implements a whole new way for employees to complain of retaliation. Under current enforcement procedures, if an employee files a complaint of retaliation, it is investigated by specially trained members of OSHA’s Whistleblower Protection Program. The ultimate decision as to whether retaliation occurred is made by a federal judge. The process and procedures for investigating and prosecuting a retaliation claim are much different than the procedures used by OSHA’s compliance officers to inspect a worksite and issue citations.

The new rule changes that. Under it, employee complaints of retaliation can now be investigated in the same way as any other alleged safety violation. A compliance officer can now investigate a complaint of retaliation, unilaterally conclude that retaliation had occurred, and issue a citation. As abatement, OSHA could demand that an employer remove discipline from an employee’s file or reinstate a discharged employee.

Perhaps more worrying, compliance officers can now use these new anti-retaliation provisions to target employers that have mandatory post-accident drug testing policies or safety incentive programs. Over the past few years, OSHA has been adamant in contending that employers are using drug testing and safety incentives to discourage injury reporting — again, all without any empirical evidence to back up these claims. Prior to this rule, OSHA had little recourse to force employers to change such policies and programs. With this new rule, the agency will be able to issue costly citations in an attempt to force employers to change drug testing policies and safety incentive programs.

Electronic Filing of Injury and Illness Forms

Under the new OSHA recordkeeping rule:

• Employers with 250 or more employees will be required to electronically submit their Form 300A (the recordkeeping summary) to OSHA by July 1, 2017.
• For the year 2017, employers with 250 or more employees will be required to electronically submit all of the required OSHA recordkeeping forms, including all Form 300s, 300As, and 301s, by July 1, 2018.
• In the years following, large employers will be required to electronically submit these forms by March 2 of each year.

Keep in mind that employers must count any part-time, temporary, or seasonal workers in determining whether they meet the 250 employee threshold.

The rule’s electronic filing requirements are not limited to only large employers. Employers with more than 20 but less than 250 employees in certain “high hazard” industries are required to begin submitting their Form 300As annually. The list of NAICS codes used to define “high hazard” is not narrowly tailored, but broad and includes any employer in Construction (NAICS 23) and Manufacturing (NAICS 31-33), along with 64 other industry classifications.

As if the OSHA recordkeeping requirement to electronically submit injury and illness forms is not enough, OSHA intends to publish the forms on a searchable website open to the public – raising a host of privacy, cyber-security, and other concerns. While OSHA says it will redact personally identifiable employee information, it will not be difficult for co-workers, neighbors, or others with knowledge of the employer’s operations to discern an injured employee’s identity using information from the submitted forms. Even Form 301, which can contain sensitive and private medical information, such as a description of the nature and severity of the employee’s injury, will be made public.

Moreover, this information is going to be made public without any context or explanation as to what may have given rise to the injury or illness, and will almost certainly be misused and misconstrued by plaintiffs’ lawyers and others to “shame” submitting employers. Anyone with any experience in the field of safety and health knows that OSHA’s injury reporting forms and data do not tell the whole story of a company’s commitment to the safety and health of its employees. It is also likely that OSHA will use this public database to issue more “willful” citations and to push for more “corporate-wide” abatement.

Takeaways

With the effective date of the anti-retaliation provisions less than 90 days away, all employers should take a close look at their employee handbooks, safety policies and procedures, safety incentive programs, and drug testing policies.  Employers will need to update those documents to include the required injury reporting and anti-retaliation language. Employers with strict post-accident drug testing programs should be particularly prepared to defend those programs in the event of an OSHA inspection.

Those employers covered by the new electronic submission provisions should begin making the necessary changes to be able to file OSHA forms electronically. Many employers still keep these forms in hard copy and do not keep an electronic record. This will have to change. Employers should also be taking a close look at their OSHA Form 300s, 300As, and 301s to make sure that they are accurate, up to date, and do not contain any extraneous or unnecessary information.  Those documents will soon be subject to public scrutiny on the internet.

The new rules are complex, and employers would be well-advised to contact a safety professional or an experienced OSHA attorney as they consider changes, particularly in their drug-testing policies and safety incentive programs. The stakes associated with your OSHA recordkeeping obligations have gone up.  Now more than ever, an ounce of consultation and prevention is worth a pound of cure.

Andrew Kaake, a Cinncinati attorney specializing in OSHA matters, is a senior advisor for FDRsafety. Contact him at andrewrkaake@gmail.com or (513) 703-6938.