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The New Electronic Recordkeeping and Anti-Retaliation Requirements
Safety Records: OSHA is updating its recordkeeping and anti-relation requirements. Are you ready for the changes to traditional injury and illness reporting?
By Rick LeBlanc
Date Posted: 12/1/2016
OSHA is updating its recordkeeping and anti-relation requirements. Are you ready for the changes to traditional injury and illness reporting?
Are you ready for the changes to traditional injury and illness reporting?
This May, the Occupational Safety and Health Administration (OSHA) published its final rule related to workplace injury and illness (I/I) recordkeeping. In terms of recordkeeping, there is no change required with regard to form completion requirements. The new rule pertains to the electronic submission of this information to OSHA.
The rule takes effect on January 1, 2017. And the requirements vary depending upon the type of company and the number of employees. Industries with historically high rates of occupational injuries and illnesses, including the pallet industry, will be the focus. Adele Abrams, president of the Law Office of Adele L. Abrams P.C., states that the requirement will certainly be felt by almost all pallet operations, specifically those establishments with 20 or more employees.
While OSHA requires employers with 10 or more employees in sectors such as the pallet industry to keep I/I records, the electronic reporting component is a requirement only for company sites with 20 or more workers. According to Abrams, “The reports must cover injuries and illnesses affecting full- and part-time employees, seasonal workers and temporary workers who are supervised in their work activities by the host employer. All of these workers count toward the total number of employees for purposes of the reporting thresholds contained in the rule.”
The total employee count pertains to the peak number of employees, including seasonal and temporary workers, employed at an establishment at any time of the year. In other words, if the location has 20 employees for just a single day during the year, it would fit into the category of 20 or more employees.
Effective July 1, 2017, establishments (locations) with 20 or more employees will be required to submit their Form 300A (Summary of Work-Related Injuries and Illnesses) for the previous calendar year. Starting on July 1, 2018, locations with 250 or more workers will also be required to electronically submit Form 300 (Log of Work-Related Injuries and Illnesses) and Form 301 (Injury and Illness Incident Reports) information. Companies may have more than 250 employees in total, but as long as they have less than that at any single location, then they are only required to submit the 300A.
In 2019, the due date for this information moves up to March 2. The new rule does not impact the recording criteria or definitions previously required under 29 CFR Part 1904. Employers, as currently required, must still maintain the OSHA Forms 300, 300A and 301, to produce them for OSHA inspectors, when requested. Likewise the Form 300A must still be posted in the workplace for the period of February 1 to April 30 of the following calendar year.
With the new rule, information from the Form 300A will be publicly posted by OSHA, a move that it feels will “nudge” employers to focus on safety, resulting in fewer injuries and more profitable businesses.
Another important component of the change has to do with anti-retaliation. The final rule requires employers to
inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster.
The poster can be found at this link (https://www.osha.gov/Publications/poster.html.) These provisions were set to become effective August 10, 2016, but OSHA has delayed their enforcement until Dec. 1, 2016.
The anti-retaliation provisions also require that employees who are injured should not receive discipline in excess of another employee who commits a similar unsafe act but who is not injured. As example, Abrams draws the illustration of two workers who both fail to wear hardhats when required. One is injured by a falling object, while the other is not. The injured worker in this case, cannot be more severely disciplined than the uninjured worker. Safety incentive programs are also no longer allowed.
Issues with New Rule
Various concerns have been raised about the new rule. Abrams cautions that the electronic submission of data will make it easier for OSHA to determine if injuries result from similar hazards, or to send in inspectors to see if specific hazards have been corrected. If multiple injuries from similar hazards have not been corrected, or if OSHA dispatches specialist inspectors to check on a specific workplace hazard noted in the Form 300A that resulted in injuries and finds they have not been remedied by the employer, OSHA could issue more “willful” citations. Fines can reach $125,000.
On another note, because of concerns such as those listed above, or other worries about injury information being made public, some experts believe that some employers will be motivated to under report.
The anti-retaliation provisions are also very important to consider. Abrams stresses that the new rule, effective December 1, prohibits employers from such acts as disciplining injured workers more severely or requiring them to be drug tested versus workers who performed a similar unsafe act who were not injured. Likewise, safety incentive programs are no longer permitted, such as a monthly pizza party, for example, based on no lost-time accidents. “OSHA views it that you are depriving workers of a benefit because of injury,” Abrams explained.
The Impact of the Trump Administration
The impact of the Trump administration on OSHA remains to be seen, but opinions posted in the week following the election seemed to universally support the view that its role will become reduced. With the departure of David Michaels, the current Assistant Secretary of Labor for OSHA, will be leaving OSHA, his replacement will likely have a more pro-business perspective.
“We feel OSHA’s rabid approach has raised the stakes on safety across the country,” Eugene Keefe, a Chicago attorney specializing in workers’ compensation defense, wrote in an opinion piece. He added, “We look to see a lessened impact by OSHA under the new administration. You have to decide whether OSHA can only work in an environment where the government is felt to be on the attack and not working for cooperation.”
Travis Vance, another attorney opined that “Based on his comments and the literature made available by his campaign, President Trump likely will streamline OSHA, repeal some or all of its recent rules on increased penalties and reporting requirements and refocus the agency on high-hazard enforcement.”
Vance believes that the electronic reporting rule due to take effect on July 1, 2017 will likely be eliminated. Given that employers already collect the necessary records, the electronic submission of this information and its online posting for public scrutiny may be viewed as an unnecessary burden for business, as well as a masked attempt to shame companies into compliance.
An opinion piece from another law firm anticipated that the anti-retaliation rule effective date of December 1, 2016 would now likely be delayed, and that the new rules could be an early target for removal from the Trump administration.
In the final analysis, recordkeeping requirements do not immediately change, and whether or not electronic submission will still be required in July remains to be seen. If the effective date of the anti-retaliation measures is not pushed back again, however, they become effective on December 1. Make sure your poster is on display. Also, take other steps to ensure anti-retaliation compliance such as equal discipline are followed. Finally, you should discontinue any safety incentive schemes that penalize workers for reporting incidents.