Additional Injury Reporting Requirements & Retaliation Prohibitions Under New OSHA Rule

June 2016

On May 12, 2016, OSHA issued its final rule to revise its Recording and Reporting Occupational Injuries and Illnesses regulation.  Although many employers have already been required to record injuries and illnesses occurring in the workplace, the final rule requires certain employers to electronically submit injury and illness data and engage in other actions that promote accurate employee reporting of workplace injuries and illnesses.

Q: To What Type of Employers Does the Final Rule Apply?

A: Companies that have employed 250 or more employees at any time during the previous calendar year, and companies with 20 to 249 employees at any time during the previous calendar year in the following industries which OSHA has classified as “high risk” must comply with the rule.  These high-risk industries include, among others:

  • Agriculture
  • Construction
  • Manufacturing
  • Building materials and supplies dealers
  • Direct selling establishments
  • General and specialized freight trucking
  • General medical and specialty hospitals
  • Residential care facilities
  • Vocational rehabilitation services

Q: What are the New Reporting Requirements?

A: Every company with 250 or more employees must submit their 2016 injury and illness recordkeeping Form 300A by July 1, 2017.  In 2018, such qualifying employers must submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018.  In 2019 and every year thereafter, all forms must be submitted by March 2.

For companies with 20 to 249 employees in the “high-risk industries” identified in the hyperlink above, each must submit their Form 300A by July 1 in 2017 and 2018, and by March 2 every year thereafter.

Q: How do the new anti-retaliation provisions affect employer policies?

A:  Under the final rule, employers may not retaliate against employees for reporting workplace injuries and illnesses.  The rule further requires that employers adopt reasonable reporting procedures that do not discourage or deter employees from promptly and accurately reporting injuries and illnesses.

The comments to the final rule make clear that obvious forms of retaliation for reporting a workplace injury or illness – such as termination – are clearly prohibited, but they do not stop there.  OSHA further states that such prohibited retaliation can be anything that would deter a reasonable employee from reporting a work-related injury or illness.  The practical effect of this interpretation is that certain common employer practices may be considered a violation of the rule, including the following:

  1. Use of Injury Reports

OSHA will likely give increased scrutiny to employment policies or actions which utilize injury reports in the process of making employee discipline, performance, or promotional decisions.  Although the comments to the rule state that disciplinary action can still be taken on the basis of safety violations by an employee after an injury report is made, concerns were raised in the comment period on behalf of employers that employees may report injuries to shield themselves after they violated company safety policies.

  1. Post-Accident Drug Testing

Under the rule, employers cannot use drug testing, or the threat thereof, as a form of adverse action against employees who report injuries or illnesses.  Comments to the rule state that post-incident drug testing should be limited to situations where: 1) employee drug use is likely to have contributed to the incident, AND 2) the drug test can accurately identify whether the individual was impaired by drug use at the time of the incident.

Employers are therefore prohibited from conducting blanket drug testing of any employee who has suffered an injury or illness, unless both prongs set forth above are met.  The comments to the rule specifically identify the following instances when drug testing an employee reporting an injury would not be reasonable: a bee sting, a repetitive strain injury, or an injury caused by a lack of machine guarding or a machine or tool malfunction.  If the injury could not have been caused by impairment as the result of drug use, OSHA will not consider drug testing reasonable.

  1. Safety Incentive Programs

Finally, OSHA identified safety incentive programs as having the potential effect of deterring employees from reporting work-related injuries and illnesses, thereby potentially resulting in inaccurate recordkeeping.  Of specific concern are programs which reward employees for being injury-free, or focus on rewarding entire groups of workers for remaining injury-free.  Instead, incentive programs should reward employees for following safety rules or promote employee participation in safety-related activities, such as identifying hazards or participating in investigations of injuries, incidents, or “near misses.”

The reporting requirements of the final rule are effective January 1, 2017, and employers are required to file the OSHA forms as described in this article.  The anti-retaliation provisions, which include the employer obligation to develop a reasonable reporting procedure, will become effective August 10, 2016.  Contact FMJ to discuss the implications of these new regulations on your company and evaluate whether it is necessary to revise your current policies to ensure timely compliance with these obligations.

David Carrier is an attorney at Fafinski Mark & Johnson who practices in the HR & Employment and Litigation groups. He can be reached at david.carrier@fmjlaw.com or 952.995.9500.