OSHA's revised recordkeeping requirements: Your injury and illness reports are going public

Under OSHA’s current Recordkeeping Regulation (29 CFR 1904) employers with more than 10 employees and whose businesses are not classified as a partially exempt industry must record work-related injuries and illnesses using OSHA Forms 300, 300A and 301.   These employers are required to keep the Form 300 Injury and Illness log, and post Form 300A, the summary of work-related injuries and illnesses, in the workplace every year from February 1 to April 30.

On May 11, 2016 OSHA issued a final rule to “modernize” collection of data regarding workplace injuries and illnesses.  The new rule requires employers to electronically submit to OSHA, on an annual basis, the injury and illness data they already collect on these forms.  Then OSHA will post the establishment-specific injury and illness data it receives on a publicly available website.  Personally identifiable information associated with the data will be removed before it is made available to the public.

According to Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels:

“Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers and the public that they operate safe and well-managed facilities.  Access to injury data will also help OSHA better target our compliance assistance and enforcement resources at establishments where workers are at greatest risk, and enable ‘big data’ researchers to apply their skills to make workplaces safer.”

The new rule requires all establishments with 250 or more employees in industries covered by the recordkeeping regulation to electronically submit to OSHA injury and illness information from OSHA Forms 300, 300A and 301.  Establishments with 20 to 249 employees in certain wide-ranging high-risk industries must electronically submit information from OSHA Form 300A only. See the high-risk industry list for establishments of 20-249 employees.

Iowa Angle

Iowa is an OSHA State Plan state, meaning this new rule doesn’t apply in Iowa—yet!  However, OSHA State Plan states must adopt requirements that are substantially the same as the requirements in this final rule within six months after publication of the final rule, which would be by November 12, 2016.  So even though the effective date of this new OSHA rule will be delayed in Iowa, employers still should pay heed to what will be coming soon.

Impact on Employment Policies and Procedures

Included in the new rule are employee notification and anti-retaliation provisions.  The old rule simply required that the employer “set up a way for employees to report work-related injuries and illnesses promptly” and tell each employee how to report the injuries and illnesses.  By contrast, the new rule requires employers to “establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately.”    It specifically states that “A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”

To be compliant with the new rule, employers will need to examine and likely modify existing policies and procedures to ensure they are compliant with these reporting procedures and anti-retaliation protections. Employers must also inform each employee (1) of the right to report work-related injuries and illnesses, and (2) of the fact that employers are prohibited from discharging or in any manner discriminating against employees for such reporting.  Employers not in State Plan states must complete this notification and update policies by August 10, 2016.  Because Iowa is a State Plan state that has not yet acted to adopt a similar rule, the effective date will be later for Iowa establishments, and is yet to be determined.

Timing of Implementation

The new reporting requirements will be phased in over two years.  Establishments of more than 250 employees in industries covered by the recordkeeping regulation required to submit the information from their 2016 Form 300A by July 1, 2017.  2017 Forms 300, 300A and 301 must be submitted by July 1, 2018.  Beginning in 2019 and thereafter, all three forms must be submitted by March 2 (i.e., 2018 forms are due on March 2, 2019; 2019 forms are due on March 2, 2010, and so forth).

Establishments with 20 – 249 employees in certain high-risk industries must submit their 2016 Form 300A by July 1, 2017.  2017 Form 300A must be submitted by July 1, 2018.  Beginning in 2019 and thereafter, Form 300A must be submitted by March 2(i.e., the 2018 form is due on March 2, 2019; the 2019 form is due on March 2, 2010, and so forth).

Again, because Iowa has not yet adopted a similar rule for its State Plan, effective dates for report submissions are not yet known and may vary slightly from this schedule.

The material in this blog is not intended, nor should it be construed or relied upon, as legal advice. Please consult with an attorney if specific legal information is needed.