-By Gary Aumann –
In May 2016 the Occupational Safety and Health Administration issued a new rule for record keeping. The new rule establishes a requirement that certain employers report injuries and illnesses to OSHA electronically on a periodic basis. In this requirement some modifications have been made to the classifications of employers who must report.
These requirements are added to the existing requirement for injury recording on the OSHA 300 Log of Work-Related Injuries and Illnesses or for posting the OSHA 300A form. The new rule, which takes effect January 1, 2017, does not in any way modify OSHA’s requirements for reporting catastrophic injuries, which became effective on January 1, 2015.
The current requirement is that employers with 11 or more employees in a calendar year must maintain an OSHA 300 Log and record on that form all injuries that qualify each year. Those same employers must complete the OSHA 300A form at the end of each calendar year and post the completed form where all employees can inspect it in the worksite from February 1 through April 30 of each year. The OSHA 300A form must be completed and posted even if the employer had no injuries during the preceding year.
The new reporting requirements mandate the electronic filing of the OSHA 300A form with OSHA annually for any employer with more than 20 employees. All employers with more than 20 employees during the calendar year will be required to electronically submit the OSHA 300A prior to July 1, 2017, July 1, 2018, and March 2, 2019. After March 2, 2019, these employers will be required to file the OSHA 300A form by March 2 of each year.
Employees with 250 or more employees during the calendar year will have an additional requirement each year beginning with calendar year 2018: they will be required to electronically file their OSHA 300 logs, their OSHA 300A forms, and all of their OSHA 301 forms by July 1. In 2019 and subsequent years this filing requirement will have to be met by March 2.
The OSHA 301 is the form for reporting accidents. Many employers have developed their own accident reporting form, which usually requires much more information—including information on the causes of and culpability for an accident—than that sought in the OSHA 301 form. I urge you, even if your company has its own accident reporting form, to file with OSHA only the OSHA 301 form. Doing so will satisfy OSHA’s electronic reporting requirement without putting potentially damaging information on the OSHA website, where it could be found and used against the company by anyone who knows the company’s name.
OSHA has stated that it has or will have software that will redact all employee-identifying information from these forms. This will ensure the privacy of all employees whose names may appear on the OSHA 300 or 301 forms. For all employers required to report electronically, OSHA intends to post all information reported (without employees’ names) on its website. This will enable any employer to review the safety record of competitors as well as other companies in its industry and companion industries. OSHA has stated that “behavioral science” has indicated that such public reporting will “nudge” employers to take steps to reduce the occurrences of work-related injuries and illnesses.
New Anti-retaliation Language
Additional anti-retaliation language appearing in the new rule will affect all employers. It is aimed at ensuring that employees are not discouraged from reporting work-related injuries and illnesses in a timely fashion. Unlike the electronic reporting requirements, this anti-retaliation language will take effect on August 10, 2016. The additional requirement is that employers take no action against any employee who files a report of a work-related injury or illness. In conjunction with this requirement, employers will be required to inform all employees of their right to report a work-related injury or illness without fear of retaliation for making the report. The employer can fulfill this requirement by posting in a location where it can be reviewed by all employees (such as the location of your current OSHA poster) the April 2015 OSHA poster titled “Job Safety and Health—It’s the Law.” This poster can be found on the OSHA website at www.osha.gov.
Employers’ procedures for reporting work-related illnesses and injuries must be reasonable and must not deter or discourage employees from reporting. This effort by OSHA was recently brought to light in a lawsuit filed by the Department of Labor against U.S. Steel. In this suit the DOL is seeking a permanent injunction prohibiting U.S. Steel from enforcing its current injury-reporting policies. The DOL is arguing that these policies, which require immediate reporting of any work-related injury to the company, are unreasonable and may prevent an employee from reporting a workplace injury because he or she has missed the deadline established by the employer and is therefore subject to disciplinary action. The DOL is citing two incidents that led to disciplinary action (suspensions) against two employees for not complying with U.S. Steel’s reporting requirements.
In the U.S. Steel case one employee got a splinter in his thumb and did not report it to the company. The employee’s thumb became infected, necessitating a report and a workers’ compensation claim about a week after the incident. In the second incident an employee was struck on the head but did not feel he had suffered an injury that needed to be reported. About a week after the incident, he began to have neck pain and then reported the incident. Both employees were disciplined for not following the company’s injury-reporting procedures. The DOL is taking the position that the company’s injury-reporting procedures are not reasonable because they require immediate reports of injuries.
Although this lawsuit is not premised on the new OSHA standard, which does not go into effect until January 1, 2017, the DOL is basing its case on the alleged retaliation against two employees that might have deterred or discouraged them from reporting on the job injuries. I remind readers that in the June 2012 issue of Frame Building News, I reported on an OSHA memo dated March 12, 2012, that put all employers on notice that OSHA would consider any work rules that in any way discouraged an employee from reporting a work-related injury or illness to be a violation of Section 11(c) of the Occupational Safety and Health Act. The memo, authored by Richard Fairfax, stated that OSHA would consider any work rule that suggested or mandated disciplinary action against an employee for not abiding by the employer’s work rules for reporting work-related injuries or illnesses an 11(c) violation.
In taking this action, as in publishing the March 12, 2012, memo, OSHA staff members seem to demonstrate a lack of awareness that employers have legitimate interests in the timely reporting of alleged work-related injuries. One of these interests is in accident investigation, and another centers on drug testing. Frequently the results of a post-injury or post-accident drug test may be challenged because the urine or blood sample was not secured in a timely fashion. In some states the workers’ compensation systems promoting drug-free workplaces require an aggressive post-accident or post-injury testing program. If the employer is not able to enforce work rules related to timely reporting, these drug-free workplace programs may become ineffective. One has to question OSHA’s motivation in these situations. Is the interest in encouraging employees to report work-related injuries or in providing them an “out” to avoid the employer’s drug-testing program because they know or suspect they would test positive if they reported the injury immediately?
The new anti-retaliation language includes some new information on post-accident drug testing. Many NFBA members have drug-free workplace programs that require mandatory post-accident drug testing. In its commentary on the new standard OSHA has indicated that such testing will be considered discriminatory conduct under the new anti-retaliation language in the electronic recordkeeping rule, which takes effect August 10, 2016. OSHA is taking the position that such a rule at the very least discourages an employee from reporting a workplace injury because he or she may consider the mandatory drug test to be an invasion of privacy. OSHA finds no problem with for-cause testing after a workplace accident as long as it is performed in a nonretaliatory fashion. An example would be something like a bee sting. The incident may occur in the workplace and, if reported, would result in a drug test under a mandatory testing program. But the bee sting would have nothing to do with whether the person was under the influence of drugs, so there is no reason to do a drug test. On the other hand, an employer may have reason to suspect the influence of drugs if an employee who has been trained, tested and observed to be in compliance with a rule mandating the wearing of personal protective equipment was not wearing the issued PPE when an injury occurred. In that situation an employer may justifiably require a drug test.
This requirement saddles the employer with another subjective determination, which could lead to another claim of discrimination. One way around this problem will be for the employer to prepare a list of actions that will constitute reasonable cause for ordering a drug test. With such a list, however, the employer may be limited to ordering a post-accident drug test for the listed reasons only.
The March 12, 2012, memo also indicated that OSHA would consider safety incentive programs in decisions concerning work-related injuries and illnesses. According to the memo, any incentive program that was dependent upon not reporting work-related injuries or illnesses would be considered by OSHA to be a violation of Section 11(c) of the act. By its action in the U.S. Steel case, it is apparent that OSHA is pursuing remedies against employers when it perceives that employees’ rights to freely report work-related injuries and illnesses without fear of retaliation are threatened by policies or programs of the employer.
OSHA also proposed other controls relating to anti-retaliation for this new standard. These were first proposed on August 4, 2014, about a year after the original proposal of the standard being discussed in this article. It is likely that the additional anti-retaliation controls will be addressed in a final rule at a later date, and will merit substantial commentary and discussion in the future.
Gary Auman of Dunlevey Mahan and Furry is legal counsel for the National Frame Building Association.