On May 12, 2016, the Federal Register issued OSHA‘s final rule on “Improving Tracking of Workplace Injuries and Illnesses“. The Occupational Safety and Health Administration suggests the rule will improve safety for workers across the country by having employers publicize their injury and illness information on a public website in an non-personally identifying manner. This could provide valuable information to potential employees, customers, vendors, and more who are considering working with the employer where the injury took place. OSHA feels that this rule will nudge employers to do the right thing in reducing workplace hazards by applying the added pressure of public perception.

What the New Rule Sets Out to Accomplish

OSHA also believes the new rule will do the following:

• Improve the accuracy of injury data by ensuring that workers will not fear retaliation for reporting injuries or illnesses.
• Provide data for OSHA to assist the agency in improving allocation of compliance assistance.
• Help promote workplace safety through expanded access to timely, establishment-specific injury and illness information for OSHA, employers, employees, customers, potential customers, and more.

Who is Covered Under the New Rule

The new rule, which takes effect January 1st of 2017, will require affected employers to file injury and illness data (that they are already required to record on their onsite OSHA Injury and Illness forms) electronically through a secured website link. The rule classifies 3 categories of employers:

1. Large Employer – A large employer is defined as an employer with 250 plus employees.
2. High Risk – A High Risk employer is an employer that has 20-249 employees within one of 68 specific industries based on the North American Industry Classification System (NAICS) code.
3. Any other employers from which OSHA makes a written request for data.

New Rule Submission Deadlines

Employers who will be required to submit their OSHA log information will be provided a website link with instructions on how to enter their information. The submission information and deadline table below summarizes what information OSHA is requesting and the submission deadline for those submissions.

SUBMISSION INFORMATION AND DEADLINE

Additional Rule Changes

The new rule has additional major provisions that are embedded within it of which employers need to also be aware of. These changes take effect as of November 1, 2016.

1904.35(a)(2) & 1904.35(b)(1)(iii): Employee Information on Reporting.

Employers must inform employees of their right to report work-related injuries and illnesses without retaliation. Employers must provide evidence that employees have been instructed to report occupational injuries and illnesses. Training material and written procedures must include the word right in order to provide evidence to OSHA that the information has been communicated to employee. This may also be met by posting the April 2015 OSHA poster.

1904.35(b)(1)(i): Reasonable Reporting Procedures.

Reporting requirements must be reasonable and not deter or discourage employees from reporting. This includes having any incentive program that is based on OSHA recordable events. OSHA feels that drug testing post incident (Learn more in “DOT vs Non-DOT Drug Testing: What’s the Difference?“) should be by specific injury only and not broad-based such as for all injuries and illnesses. OSHA feels that the possibility of drug testing can deter employees from reporting occupational injury and illnesses. For example, should a post incident drug test be conducted for a soft tissue injury? OSHA believes not. Post incident drug testing should be conducted for injuries where the employer believes drug use was a determining factor that caused the injury.

1904.(b)(1)(iv): Prohibition of Discrimination Against Employees for Reporting a Work- Related Injury or Illness.

This prohibits employers from retaliation against employees for reporting work-related injuries or illnesses. OSHA will now be able to cite an employer if they believe an employee’s rights have been violated, even without a formal complaint by the employee. This may or may not contradicts the purpose and scope of Section 11(c) of the OSH Act but the courts will have to make that determination.

Effective Date

These major provisions go into effect November 1, 2016. Also, for employers who fall under one or multiple state OSHA Approved State Plans, this law goes into effect 6 months after the publication date. Check with your state area office to find out specific details for your company.

In conclusion, this new law has much more in it than simply the new reporting requirements. Employers must learn on how to become aware and to remain aware of OSHA’s regulatory agenda by reviewing the Unified Agenda so they can react accordingly on meeting compliance. Also, by reviewing the Unified Agenda, employers will be able to review the entire legislation beforehand and become involved in the public meetings that occur for such regulatory changes to occur.