Rule on injury reporting creates new obligations

By Erik Eisenmann and Laura Ferrari

The Occupational Safety and Health Administration published a final rule in May requiring certain employers to electronically submit workplace injury and illness infor­mation to OSHA and requiring all employers to adopt procedures to encourage employee reporting.

According to OSHA, these increased disclosure requirements will “nudge” employers to reduce work-related inju­ries and illnesses. Notably, while person­ally identifiable information about em­ployees will be blacked out, these data (including information identifying the employer) will be posted on OSHA’s pub­licly accessible website.

Various other elements of this new rule will likewise significantly affect em­ployers’ duties under the Occupational Safety and Health Act.

Electronic reporting requirements

While current regulations require employers to maintain records of work­place injuries and illnesses, OSHA typi­cally reviews these records only when it conducts a site inspection. The new rule now requires certain establishments — those with 250 or more employees — to not only continue retaining their own re­cords but also to submit the information electronically to OSHA. For employers with fewer than 250 employees, those in certain industries must also make elec­tronic submissions. Although this new rule takes effect Jan. 1, the new require­ments are to be phased in over the next three years.

The information will be submitted by employers using a secure website, but will be posted on OSHA’s public web­site, and the data will be searchable by employer. Certain commentators have expressed concern regarding the new requirement, suggesting that OSHA is attempting to use “public shaming” to coerce employers into making work­place changes that might be more exten­sive than actually required. In addition, there is some concern that the new rule will have the unintended effect of actual­ly discouraging employers from provid­ing complete and accurate information.

Anti-retaliation measures

The new rule also creates stronger employee protections, ostensibly in the hope of making it easier to file complete and accurate reports. Employers will be required to put up OSHA’s Job Safety and Health: It’s the Law poster, which is available at https://www.osha.gov/Pub­lications/poster.html, if they have not already done so. (Versions of this poster from April 2015 and later are current.)

In addition, employers will be subject to enhanced anti-retaliation provisions that prohibit retaliating or discrimi­nating against employees — whether in the form of termination, pay reduction, less-favorable job reassignment or other adverse actions — for reporting work­place injuries and illnesses. Unlike the electronic reporting requirements, how­ever, these provisions apply to all em­ployers covered by the Act, regardless of size. Notably, this prohibition may be enforced by OSHA even if an employee has not filed a complaint.

Procedures for reporting injuries

The rule contains a requirement that employers establish a “reasonable proce­dure for employees to report work-relat­ed injuries and illnesses promptly and accurately.”

Although OSHA provides no further guidance about what a “reasonable pro­cedure” looks like, it does suggest that a procedure is “unreasonable” if it would deter or discourage a reasonable employ­ee from accurately reporting a workplace injury or illness.

Many employers have just a simple sentence in their policies or handbooks regarding reporting of workplace inju­ries and it is not clear whether that lan­guage is sufficient by itself to satisfy this new standard. Coordinating with expe­rienced occupational safety and health counsel on this issue is critical to ensure compliance with the law.

Incentive programs

Finally, the new rule casts into doubt the legality of safety incentive programs currently utilized by many employers. The typical safety incentive program provides a bonus to a team of employees if no one from the team is injured over a period of time, or enters all employees who have not been injured in the pre­vious year in a drawing to win a prize. In OSHA’s view, these seemingly benign policies may have the unintended effect of negatively influencing employee re­ports of injuries or illnesses, and/or en­couraging retaliation against employees who make such a report.

Although the rule does not specifical­ly prohibit these kinds of programs, the language in the commentary to the final rule, along with a guidance memoran­dum issued in 2012, makes it clear that OSHA will be closely scrutinizing these programs going forward. As with the re­porting procedure, consulting with coun­sel will be essential to avoid running afoul of OSHA’s increased enforcement efforts in this area.

Erik Eisenmann and Laura Ferrari practice law in Milwaukee.