January 1, 2017, won’t just ring in the New Year, it will also ring in the effective date of a host of new government regulations. Among them is the Occupational Safety and Health Administration’s (OSHA) new workplace injury reporting rule that has already met with opposition from business groups who question whether the new rule might actually derail programs designed to reduce workplace accidents. The government, on the other hand, claims that the new reporting rule will pressure employers to maintain safer workplaces and erase any fear of retaliation that the injured employee might face when reporting an injury.
In announcing the new workplace injury reporting rule, dubbed “Improve Tracking Workplace Injuries and Illnesses,” OSHA cited concepts of human behavior and motivation: “Behavioral economics tells us that making injury information publicly available will ‘nudge’ employers to focus on safety. And, as we have seen in many examples, more attention to safety will save the lives and limbs of many workers, and will ultimately help the employer’s bottom line as well” (https://www.osha.gov/recordkeeping/finalrule/).
Electronic Reporting of Injuries
The new rule requires certain employers now to electronically submit injury and illness data that they are already required to record on their OSHA Injury and Illness forms. OSHA will analyze the data as part of its enforcement and compliance functions, and, much like other regulatory agencies, it will post some of the enforcement case data to its website. The amount of data required to be submitted will vary depending on the size of company and type of industry.
Businesses with 250 or more employees in industries covered by the recordkeeping regulation must submit injury or illness information from their 2016 Form 300A by July 1, 2017. They will be required to submit information from their 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2. Establishments with 20–249 employees in certain high-risk industries must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.
The rule is also intended to protect workers from employer retaliation arising from the reporting of a workplace injury or illness. Until now, anti-retaliation protection for workers was implicit, but the new rule gives examples of what an employer can or cannot do as to company policies aimed at reducing workplace injuries. Essentially, employer procedures for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting such injuries or illnesses. The anti-retaliation feature of the rule becomes effective December 1, 2016.
While regard for workplace safety is a concern of both employer and employee, on July 8, 2016, a group of trade associations and a workers’ compensation insurer filed a lawsuit against the anti-retaliation provision of the rule. Their objection was based on the preamble to the rule that cited post-accident drug testing as well as safety incentive programs as violations of the provision. The plaintiffs argued that post-accident drug testing as well as safety incentive programs that reward employees who maintain a safe workplace have been proven to reduce workplace injuries.
While a federal judge in Texas has ruled that no “irreparable harm” was foreseen by implementation of the provision, and he therefore denied the motion for injunctive relief, the case still awaits a full hearing on the merits of the complaint. In the meantime, the January 1, 2017, effective date remains.