OSHA Issues Final Rule Revising Its Recordkeeping Standard

Requires Employers to Electronically Submit Injury and Illness Data

Update: OSHA announced on Oct. 12 that it was delaying enforcement of the anti-retaliation provisions in its new injury and illness tracking rule to allow additional time to consider a motion challenging the new provisions. Originally scheduled to begin Aug. 10, 2016, enforcement will now begin Dec. 1, 2016.

Update (July 20, 2017): In July 2017, OSHA announced the launch of an application that would allow employers to electronically submit required injury and illness data. As a result of this delayed implementation, the original deadline for submitting 2016 reports was extended to Dec. 1, 2017. The submission chart below has been edited to reflect this change.

On May 12, 2016, the Occupational Safety and Health Administration (OSHA) finalized several amendments to its recordkeeping and reporting standard. The most significant change will require various employers to electronically submit injury and illness data which OSHA will make publicly available. In addition, the new rule establishes several anti-retaliation provisions to protect and encourage employees to report workplace injuries and illnesses. By making injury information publicly available, OSHA contends these amendments will “nudge” employers to focus on safety and improve the accuracy of injury data by ensuring workers will not fear retaliation for reporting injuries or illnesses.

Electronic Reporting

Effective January 1, 2017, the following establishments will be required to electronically submit their injury and illness data:

  • Establishments with 250 or more employees in industries covered by OSHA’s recordkeeping standard (partially exempt industries can be found here);
  • Establishments with 20-249 employees in certain high-risk industries listed here.

OSHA intends to provide a secure website for the electronic submission of the information and will remove any personally identifiable information (employee name, address, treating physician, etc.) before making the data publicly available. The following chart illustrates which forms shall be electronically submitted and their respective submission deadlines.

Submission Date Dec. 1, 2017 (originally July 1, 2017) July 1, 2018 March 2, 2019 (every year thereafter)
Establishments with 250 or more employees 2016 Form 300A 2017 Forms 300A, 300, and 301 Forms 300A, 300, and 301
Establishments with 20 to 249 employees 2016 Form 300A 2017 Form 300A Form 300A

Anti-Retaliation Protection

Effective Dec. 1, 2016, all employers shall complete the following to comply with the new provisions providing anti-retaliation protection to employees:

  • Inform employees of their right to report work-related injuries and illnesses free from retaliation.
  • Establish a reasonable procedure for employees to report work-related injuries and illnesses that does not deter or discourage employees from reporting.
  • Upon request, shall provide an employee with a copy of the establishment’s current or stored OSHA 300 Log and a copy of the OSHA 301 Incident Report if the injury described in the report was sustained by the employee.

Employers were prohibited already from retaliating against employees who report work-related injuries or illness, but the amendments now allow OSHA to issue citations if it deems the employer retaliated or deterred against employees for reporting, regardless of whether the employee issued a whistleblower complaint.

Additional Insight From United Heartland Loss Control

The following interpretation/insight regarding OSHA’s newly revised recordkeeping standard is based on information collected by United Heartland’s Loss Control team through OSHA workshops, seminars, research, etc.

  • The format in which forms 300A, 300, and 301 shall be submitted has not yet been determined. It is anticipated that a help desk will be set up to assist with any questions.
  • Displaying OSHA’s “Job Safety and Health: It’s the Law” poster (with a release date of April 2015 or later) will satisfy the new requirement to inform employees of their right to report work-related injuries and illnesses free from retaliation.
  • For a reporting procedure to be “reasonable,” it must allow work-related injuries and illness to be reported within a reasonable time frame and not be unduly burdensome. In addition, it must not deter employees from reporting injuries when enforcing the following:
    • Disciplinary Policy: Under the final rule, OSHA can issue citations to employers who discipline workers for reporting injuries and illnesses when no legitimate workplace safety rule has been violated. A legitimate workplace safety rule should require or prohibit specific conduct so it can be applied fairly.
    • Post-Accident Drug Testing: If an injury or illness is very unlikely to have been caused by employee drug use, or if the method of drug testing doesn’t identify impairment but only use at some point in the resent past, requiring the employee to be drug tested may inappropriately deter reporting. The final rule does not ban drug testing; it does prohibit employers from using drug testing (or the threat of it) as a form of adverse action against employees who report injuries and illnesses. Therefore, drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident and which the drug test can accurately identify impairment caused by drug use.
    • Employee Incentive Programs: Incentive programs should not take adverse action including denying a benefit, because an employee reports a work-related injury or illness, such as disqualifying the employee for a monetary bonus or any other action that would deter a reasonable employee from reporting injuries and illnesses.

The links below contain more information about these changes or you can also review a copy of the final rule in its entirety.

As always, please contact your loss control representative with questions or call us at 1-800-258-2667.

Note: Public sector employers in Wisconsin are not required to adhere to the new recordkeeping standard. The current Department of Safety and Professional Services (DSPS) chapter SPS 4332 incorporates the 2010 OSHA standards.