By Erik Eisenmann
and Laura Ferrari
On May 12, the Occupational Safety and Health Administration published a final rule requiring certain employers to electronically submit workplace injury and illness information to OSHA and requiring all employers to adopt procedures to encourage employee reporting.
According to OSHA, these increased disclosure requirements will “nudge” employers to reduce work-related injuries and illnesses. Notably, while personally identifiable information about employees will be blacked out, these data (including information identifying the employer) will be posted on OSHA’s publicly accessible website.
Various other elements of this new rule will likewise significantly affect employers’ duties under the Occupational Safety and Health Act.
Electronic reporting requirements
While current regulations require employers to maintain records of workplace injuries and illnesses, OSHA typically reviews these records only when it conducts a site inspection. The new rule now requires certain establishments — those with 250 or more employees — to not only continue retaining their own records but also to submit the information electronically to OSHA. For employers with fewer than 250 employees, those in certain industries must also make electronic submissions. Although this new rule takes effect Jan. 1, the new requirements are to be phased in over the next three years.
The information will be submitted by employers using a secure website, but will be posted on OSHA’s public website, and the data will be searchable by employer. Certain commentators have expressed concern regarding the new requirement, suggesting that OSHA is attempting to use “public shaming” to coerce employers into making workplace changes that might be more extensive than actually required. In addition, there is some concern that the new rule will have the unintended effect of actually discouraging employers from providing complete and accurate information.
The new rule also creates stronger employee protections, ostensibly in the hope of making it easier to file complete and accurate reports. Employers will be required to put up OSHA’s Job Safety and Health: It’s the Law poster, which is available at https://www.osha.gov/Publications/poster.html, if they have not already done so. (Versions of this poster from April 2015 and later are current.)
In addition, employers will be subject to enhanced anti-retaliation provisions that prohibit retaliating or discriminating against employees — whether in the form of termination, pay reduction, less-favorable job reassignment or other adverse actions — for reporting workplace injuries and illnesses. Unlike the electronic reporting requirements, however, these provisions apply to all employers covered by the Act, regardless of size. Notably, this prohibition may be enforced by OSHA even if an employee has not filed a complaint.
Procedures for reporting injuries
The rule contains a requirement that employers establish a “reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.”
Although OSHA provides no further guidance about what a “reasonable procedure” looks like, it does suggest that a procedure is “unreasonable” if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.
Many employers have just a simple sentence in their policies or handbooks regarding reporting of workplace injuries and it is not clear whether that language is sufficient by itself to satisfy this new standard. Coordinating with experienced occupational safety and health counsel on this issue is critical to ensure compliance with the law.
Finally, the new rule casts into doubt the legality of safety incentive programs currently utilized by many employers. The typical safety incentive program provides a bonus to a team of employees if no one from the team is injured over a period of time, or enters all employees who have not been injured in the previous year in a drawing to win a prize. In OSHA’s view, these seemingly benign policies may have the unintended effect of negatively influencing employee reports of injuries or illnesses, and/or encouraging retaliation against employees who make such a report.
Although the rule does not specifically prohibit these kinds of programs, the language in the commentary to the final rule, along with a guidance memorandum issued in 2012, makes it clear that OSHA will be closely scrutinizing these programs going forward. As with the reporting procedure, consulting with counsel will be essential to avoid running afoul of OSHA’s increased enforcement efforts in this area.
Erik Eisenmann and Laura Ferrari are attorneys at Whyte Hirschboeck Dudek in Milwaukee. Eisenmann can be reached at 414-978-5731 or [email protected], and Ferrari can be reached at 414-978-5368 or [email protected].