On May 12, 2016, OSHA published its final rule modernizing injury and illness (I/I) data collection and requiring that most OSHA-regulated employers submit their mandatory OSHA forms on an annual basis, effective July 1, 2017. The forms that must be submitted vary by company size and type, as explained below. OSHA’s regulation requires employers with more than 10 employees in most industries to keep records of occupational I/I at their establishments, but only those with 20 or more workers are affected by the e-Recordkeeping requirements in the new rule. It does not change the recording criteria or definitions that were previously codified in 29 CFR Part 1904.
While employers will have to file data annually through the forthcoming electronic data entry system, they will still be obligated under 29 CFR Part 1904 to maintain the OSHA Forms 300, 300A, and 301, to make them available to inspectors upon request, and to post the Form 300A (Annual Injury and Illness Summary Log) in the workplace between February 1st and April 30th of the following calendar year.
WHAT DOES THE REPORT COVER
The reports must cover injuries and illnesses affecting full and part time employees, seasonal workers as well as temporary workers, and day laborers who are supervised in their work activities by the host employer or general contractor. All of these workers count toward the “total” number of employees, for purposes of the reporting thresholds contained in the rule. OSHA clarified that if an enterprise or corporate office has control over one or more establishments required to electronically submit their data, the corporate office can collect and electronically submit the information for its establishments.
In addition to the electronic reporting requirements, the rule adds provisions clarifying employees’ rights to report I/I to their employer without fear of retaliation, supplementing the rights provided by Section 11(c) of the Occupational Safety & Health Act of 1970 (OSH Act). The rule clarifies that an employer must have a reasonable procedure for reporting work-related I/I that does not deter workers from filing such reports. This portion of the rule applies in all OSHA-regulated workplaces, effective August 10, 2016.
BEHAVIORAL ECONOMICS
OSHA says that it is applying “behavioral economics” to improve workplace safety and wants to “nudge” employers to prevent workplace injuries and illnesses to demonstrate to investors, job seekers, customers, and the public that they operate safe and well-managed facilities. Currently, employers can obtain data from OSHA and the Bureau of Labor Statistics about injury and illness rates by industry sector, but not by comparison to other specific employers. The new rule will enable employers to benchmark their safety and health performance against industry leaders, and can lead to improvement of safety programs. All data will appear, in a searchable format, on the agency website, www.osha.gov. This will no doubt be extensively used by general contractors, host employers, and services to prequalify subcontractors or to verify the information that contractors have submitted about their I/I rates.
OSHA plans to use the data it receives from employers to target both enforcement resources (e.g., the site-specific targeting approach to programmed OSHA inspections) and to offer compliance assistance at establishments where workers are at risk. The data collection effort will also facilitate research on occupational injuries and illnesses and enable the government to identify emergent hazards that are harming workers, so that interventions can occur.
OSHA has pledged that it will scrub personally identifiable information from the data before it is made publicly available. The release of personal information, or the ability to “reverse engineer” accident information in order to identify the victim, was among the concerns expressed by commenters during the rulemaking process.
REPORT DUE DATES
Although the e-Recordkeeping portion of the final rule becomes effective January 1, 2017, the first reports will not be due until July 1, 2017, at which time all covered employers will have to submit the Form 300A (Summary of Work-Related Injuries and Illnesses) only. Starting in calendar year 2018, establishments with 250 or more employees will have to submit Forms 300A, Form 300 (Log of Work-Related Injuries and Illnesses), and Form 301 (Injury and Illness Incident Report) by July 1, 2018.
Establishments with between 20-249 employees that are classified by NAICS code in certain industries that have historically high rates of occupational I/I (which includes construction) will have to file electronically, but their submission requirement is limited to the summary, Form 300A. Subsectors of other industries are covered as well, and the expansive list of small employer sectors covered is included in Appendix A to subpart E of Part 1904. The e-Recordkeeping requirements are codified at 29 CFR 1904.41.
Beginning in 2019, the submission deadline for filing the mandated reports will move to March 2nd (instead of July 1st). The rule retains the provision that permits OSHA to collect information from other employers, who will not submit the information to the agency routinely electronically, upon written notification from OSHA or its designee.
States that manage their own OSHA programs (22 states cover private sector employers and are designated as “state plan states”) will have to adopt requirements that are substantially identical within 6 months from May 12, 2016.
FINAL RULE LITIGATION EXPECTED
OSHA says that incentive programs that deprive a worker, or his work unit, from receiving a bonus or other prize because an employee suffered an injury would be considered as interference with the worker’s protected rights under Section 11(c) of the OSH Act. Similarly, disciplinary programs that punish all workers who are injured, regardless of fault, or which impose harsher discipline on workers who are injured than is imposed on workers who violate the same safety rule but are uninjured, would be a violation. The final rule is expected to result in litigation, but OSHA was successful in publishing the rule prior to May 23, 2016, which insulates it from repeal by Congress using the Congressional Review Act.■
About the Author:  Adele L. Abrams, Esq., CMSP, is an attorney and safety professional who is president of the Law Office of Adele L. Abrams PC, a nine-attorney firm that represents employees in OSHA and MSHA matters nationwide. The firm also provides occupational safety and health consultation, training, and auditing services. For more information, visit www.safety-law.com.
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Modern Contractor Solutions – June 2016
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