The United States Occupational Safety and Health Administration (OSHA) recently issued a final rule revising its so-called Recordkeeping and Reporting Occupational Injuries and Illnesses regulation, 29 CFR Parts 1904 and 1902.  Most of the requirements of OSHA’s final rule will take effect on January 1, 2017.  Two sections of the final rule, however, become effective on August 10, 2016.

The Provisions Taking Effect August 10, 2016

In particular, on August 10, 2016, revised Sections 1904.35 and 1904.36 of the regulation will take effect.  OSHA, however, has decided to delay enforcement of these provisions until November 1, 2016 to allow OSHA to “provide outreach to the regulated community” so that employers can ensure they are in compliance with the new provisions when enforcement begins on November 1, 2016.

Sections 1904.35 and 1904.36 include new provisions which require that:

(1)       employers notify their employees of their right to report illnesses and injuries free from retaliation;

(2)       employer illness and injury reporting procedures must be reasonable and not have the effect of deterring or discouraging employees from reporting such illnesses or injuries; and

(3)       consistent with language already contained in the Occupational Safety and Health Act (the “OSH Act”), prohibiting employers from retaliating or discriminating against employees who report workplace illnesses or injuries.

By requiring employers to inform their employees of their right to report illnesses and injuries free from retaliation, the final rule expands the existing requirements of the regulation in an effort to “improve employee and employer understanding of their rights and responsibilities related to injury and illness reporting and thereby promote more accurate reporting.”  Employers may satisfy their notice obligation by posting the OSHA Poster, which can be accessed at https://www.osha.gov/Publications/osha3165-8514.pdf.

To the extent employers’ existing policies require employees to promptly report any work-related illnesses or injuries, they will need to be revised to make clear that employees have the right to report any such illness or injury without fear of discrimination or retaliation for doing so.

The clarification that employer illness and injury reporting procedures must be reasonable and not deter or discourage employee reporting of such illnesses or injuries is expected and intended to address the minority of employers who currently have unreasonable reporting procedures.  For example, if employer procedures for reporting illnesses and injuries include too many steps, they will likely be deemed to be unduly burdensome and, therefore not reasonable under the final rule.  Similarly, employer policies that require “rigid prompt-reporting requirements” that have resulted in employee discipline for late reporting are unreasonable, particularly as they relate to “injuries and illnesses that build up over time, have latency periods, or do not initially appear serious enough to be reportable.”

Lastly, the final rule’s prohibitions against discriminating and/or retaliating against employees for reporting work-related illnesses and injuries are already contained in the OSH Act.

The above-noted changes under the final rule are expected to have a particular impact on existing employer disciplinary policies, post-accident drug testing policies, and employee incentive programs.  Specifically, employers will no longer be able to enforce existing policies or safety rules to the extent that doing so will result in discipline or some other adverse employment action (such as not being eligible for promotion) being taken against an employee simply for reporting a work-related illness or injury or simply for being injured.  Under the final rule, OSHA will have the authority to cite “employers who discipline workers for reporting injuries and illnesses when no legitimate workplace safety rule has been violated.”

With respect to post-accident drug testing, the final rule prohibits “employers from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses.”  According to the final rule, “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.” OSHA notes that it would not likely be reasonable for an employer to conduct a drug test of an employee who reported a bee sting or who suffered a repetitive strain injury.  As a result,  blanket post-accident drug testing policies would likely only deter reporting such injuries.  The final rule further states that although employers do not specifically have to suspect drug abuse before ordering a drug test, there should be a “reasonable possibility” that drug use could have been a “contributing factor” to the reported illness or injury to require drug testing.

OSHA’s final rule also provides that although they may be well-intentioned to encourage workers to practice safety in the workplace, employee incentive programs that reward employees for low illness or injury incident rates have the potential to discourage work-related illnesses and injuries without improving safety in the workplace.  As a result, employee programs that provide incentives to workers for remaining “injury free” could discourage illness and injury reporting and could be deemed to be retaliatory under the OSH Act and the final rule.  While the comments to the final rule state that the regulation is not intended to prohibit all employee incentive programs, such programs will need to be “structured in such a way as to encourage safety in the workplace without discouraging the reporting of injuries and illnesses.”

In light of the final rule’s employee notice and anti-discrimination and anti-retaliation provisions, employers are well advised to review their existing policies and revise them, if necessary.

The Provisions Taking Effect January 1, 2017

The recordkeeping provisions of the final rule will take effect on January 1, 2017.  Under the final rule, establishments with 250 or more employees must, on an annual basis, electronically submit to OSHA or its designee some of the information contained in the three recordkeeping forms (Forms 300, 300A, and 301) they must keep pursuant to Section 1904 of the regulations.

Second, establishments in certain designated industries (e.g., manufacturing, construction, healthcare facilities, nursing care facilities, etc.) with 20 or more but fewer than 250 employees must electronically submit information from their Form 300A to OSHA or OSHA’s designee on an annual basis.

Third, employers must, upon notification from OSHA, electronically submit information from their OSHA Forms 300, 300A, and/or 301 recordkeeping to OSHA or OSHA’s designee.

The final rule’s new electronic submission requirements do not add to or change any employer’s obligation to complete and retain injury and illness records under OSHA’s existing regulations for recording and reporting occupational injuries and illnesses.

OSHA plans to post the data submitted by employers in accordance with these new recordkeeping requirements on its website, but will not disclose any personally identifiable employee information in the process.  According to the final rule, the electronic submission of Section 1904 records will provide OSHA with “more timely, establishment-specific information about injuries and illnesses in the workplace. This information will help OSHA use its enforcement and compliance assistance resources more effectively by enabling OSHA to identify the workplaces where workers are at greatest risk.”

Although the final rule’s electronic recordkeeping requirements take effect on January 1, 2017, they will be phased in between 2017 and 2019 as follows:

If you have any questions about the OSHA final rule, please feel free to contact a member of our Labor, Employment, and Employee Benefits Group.Employers should begin preparing to comply with OSHA’s new recordkeeping and reporting requirements.