On May 11, the Occupational Safety and Health Administration (OSHA) issued its final revised rule under the Injury and Illness Recordkeeping and Reporting standard (29 C.F.R. Part 1904). Effective January 1, 2017, the new rule will require electronic reporting of work-related injury and illness data that employers are already required to maintain, and establishment-specific data (minus personally identifiable information) will be made available to the public on OSHA’s website. Effective August 10, 2016, in addition to the pre-existing duty to inform employees of how to report work-related injuries and illnesses, employers will also be required to specifically inform employees of their right to report work-related injuries and illnesses without fear of retaliation.
Who is Covered and What is Required
- Establishments with 250 or more employees will be required to electronically submit certain data from Forms 300, 300A and 301 on an annual basis.
- Establishments with 20 to 249 employees in certain industries designated as particularly dangerous (listed in Appendix A to Subpart E of Part 1904) will be required to electronically submit certain data from Form 300A on an annual basis.
- Covered establishments under the old rule (i.e., those with more than 10 employees) that do not meet the above thresholds will still be required to electronically submit data upon request from OSHA.
- All establishments with more than 10 employees will be required to specifically inform employees of their right to report work-related injuries and illnesses without fear of retaliation, which again will take effect on August 10, 2016 (earlier than the rest of the rule).
OSHA received many comments on how the electronic data submission system should be designed, which it will consider as it designs the system in anticipation of the January 1, 2017, effective date. As of right now, the system has not been designed.
Impact on State Plans
States with occupational safety and health plans approved and authorized by OSHA are required to adopt electronic submission requirements identical to the new federal rule. Nothing in any state plan will affect an employer’s duty to comply with the federal standard.
General Implications for Employers’ Reporting Methods and Policies
The new rule also explicitly states in section 1904.35 that employers’ reporting methods must be reasonable and not deter or discourage employees from reporting injuries and illnesses and that employers are prohibited from retaliating against employees for reporting work-related injuries and illnesses. This provision simply codifies pre-existing OSHA policy and enforcement. Under this new provision, OSHA is expected to continue condemning employers’ safety incentive programs, based on its theory that providing employees safety incentives measured by injury rates discourages employees from reporting injuries and illnesses. These new provisions of section 1904.35 take effect August 10, 2016.
For more information about this new rule, please contact any member of Taft's Labor & Employment group.