OSHA Announces Drastic New Recordkeeping & Retaliation Rules

On May 11, 2016, OSHA (Occupational Safety & Health Administration) issued a final rule to modernize injury data collection to better inform workers, employers, the public and OSHA about workplace hazards. This new rule contains provisions that drastically alter how employers are forced to deal with their safety and health requirements when it comes to reporting injuries and anti-retaliation.  Patrick Miller of Sherman & Howard joins IAML to discuss how this new rule affects your business. 

Mike Jackson: "Hi everyone. My name is Mike Jackson and welcome to IAML's alert on OSHA's new record keeping and retaliation rules. We're joined by Patrick Miller. Pat Miller is a member of Sherman and Howard's Labor and Employment Department. He assists clients in developing and implementing safety and health programs in the work place. Including OSHA and MSHA required policies in general employment programs.  Pat routinely defends citations before the federal Occupational Safety and Health Review Commission. The federal Mine Safety and Health Review Commission, and numerous state plan occupational safety and health boards. Pat thanks so much for joining us today."

Patrick Miller: "Thank you very much. Thank you everyone. Today I'll be talking about OSHA's new record keeping and anti-retaliation rule. The rule was announced on May 11th, 2016 and in my view contains some provisions that drastically alter how employers have to deal with their safety and health requirements when it comes to reporting injuries and anti-retaliation.

"There are two components of this new rule. The first is the electronic submission of logs that are required to be kept by OSHA and the second is OSHA's anti-retaliation provisions. I'll take each of those in order.  The first provision relates to the electronic submission of OSHA records. The new rule does not change any requirements with respect to how the employers fill out their OSHA 300, 300A, and 301 logs.

"However, it does add new requirements for certain employers to submit these logs electronically to the agency. For employers who have 250 or more employees per establishment, they will now be required once this standard takes effect, to submit their OSHA 300, 300A's, and 301 logs to OSHA annually. For employers who have fewer than 250 employees at a particular establishment, they will be required to submit their annual 300A logs electronically to the government every year.

"The rule states that OSHA will be providing a secure website for the transmission of the information. However, we have not received any new detail as to the logistics of how these submissions will be made. The rule does all to have certain redemptions to be made to the OSHA 300 information. Such as the redemption of the employee names, addresses, and healthcare provider information. Given the bugs that will have to be worked out of this new website by which employers are going to submit this information. There's quite a leap time in preparing the implementation of rule.

"This portion of the rule take effect on January 1, 2017 and the first deadline for the submission of information is July 1, 2017. However, this July 1, 2017 deadline relates only to the submission OSHA 300A's. Which are the annual summaries of workplace injuries and illnesses.

"The requirements for the large employers, the 250 plus per establishment employers. For the submission of 300 logs and 301 reports, do not take effect until 2018. With those forms being due on or before July 1st of that year. However, beginning in 2019 all of these forms will be due by March 2nd of every year.

"Some of the problems we see with this portion of OSHA's new rule are that it's publically available. Once these records are sent to OSHA anyone from labor unions to plaintiff lawyers to the media will have access to this information. And the problem that creates is that OSHA 300 information is not always indicative of whether employer's work place is safe or not. Every injury or illness that is known as work related has to be placed on this log whether or not it was the result of the fault of any employer.

"So the concern from the employers perspective is the information can be used to distort the safety record of particular employers. And this is part of what we are calling OSHA's name and shame game. And it's consistent with the agencies efforts in recent years to regulate health and safety through shaming employers. We've seen it in terms of press releases and now we are seeing it in terms of forcing employers to make the information available to the public.

"So that's the first portion of this new rule. The second aspect of this new rule, which employers believe may be more troubling, relates to anti-retaliation or as OSHA deems it employee involvement in record keeping. Anti-retaliation has always been a part of the [inaudible 5:44]. In the statue itself, its section 11C of the statue, employers have always been prohibited from retaliating against employees who participate in safety inspections. Who make safety complaints or who otherwise or involved in safety and health measures.

"What this standard does is take some of those prohibitions and put it into the OSHA's citation and inspection process. The requirements of the new standard are that the employers inform the employees they have the right to report workplace injuries and illnesses. And they may not be retaliated against for doing so. That's pretty standard. That's something that is not new to employers. Nor is the requirement that the employers have to inform employees as to how to report workplace injuries and illnesses.

"So far so good. What this new rule adds that we have not seen before is the requirement that the employers have reporting procedures that are "reasonable". The language of the standard says that you must establish a reasonable procedure for employees to report work related injuries and illnesses promptly and accurately. The problem is OSHA does not define what a reasonable policy is. All they say is what a reasonable policy is not. And they say a procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.

"So what this standard does and what is known as a preformation ordinated standard. It basically puts the ball in the court of the employer to determine what type of procedure is going to be reasonable. And the problems we see with this are it leaves a lot of interpretation to the agencies discretion. And what we will be seeing routinely in an OSHA inspection is OSHA compliant officers are going to be looking at an employer reporting procedures and making a determination if they think it's a reasonable policy or if it's one that will deter reasonable employee from reporting an injury.

"And where this is going to come up in a couple of areas where this is going to come up. The first is in safety incentive programs. Many employers have programs that incentivize workers to not have reportable injuries. An example would be, if a particular shift or group of employees goes x number of days without a reportable injury there's some sort of monitory reward. That's a common example of what we would call a safety incentive program. OSHA's taking the view and they've taken the view for some time but practically with this regulation.

"They say those source of incentive programs on their face are retaliatory because they discourage employees from reporting workplace safety and health injuries. In another words and employee saying geez if I report this injury my group is going to lose the monitory reward, I'm not going to report the injury. So OSHA's taking the position that these sorts of incentive programs are retaliatory. So we're advising employers to take a close look at any type of incentive programs and make sure any benefits you give employees aren't tied solely to reportable injuries.

"It's good to have other things in there along the lines of if you have so much participation in safety meetings or if you raise safety issues x number of times you are also entitled to this benefit. It's a really good idea to keep your programs not tied solely to reportable injuries. The other area where this new rule is going to impact is drug and alcohol testing. The standard itself does not speak to drug and alcohol testing. However, in the preamble to the standard, OSHA's made it very clear that they view certain post-accident drug and alcohol testing policies as unreasonable. And maybe deterring employees from reporting injuries.

"And what they particularly take issue with is are policies that require drug and alcohol testing after each injury that takes place at a worksite. Their theory is that if employees know that they are going to get drug tested after every injury regardless of the cause, they might be dissuaded from actually reporting the injury. The example OSHA gives is a bee sting. If an employee reports a bee sting it's very likely that drugs and alcohol were not involved. If the employee knows that they are going to be tested they may not report that work related injury.

"The problem that we see with OSHA's position on this is that your employers do not know that drug and alcohol was involved until they do the testing. So we think that this reading of the rule and the purpose behind this rule is not consistent with what OSHA is saying with regards to drug and alcohol testing. I think employers should be able to and are wise to test employees following any sort of accident to see if drugs and alcohol were involved.

"OSHA does say that the extent that such testing is required by other statue to regulations, you obviously can go ahead and do it. But they are saying that drug and alcohol testing in every case could run a fowl of this new standard. And we think that can be quite a problem. So one other new aspect of the standard is prohibition against discarding or discriminating against employees from reporting work related injuries or illness.

"As previously mentioned, this prohibition has been in the books through section 11C of occupational safety and health act. However, under that statue the procedure has always been for an employee to make a complaint to OSHA. For OSAH to investigate the complaint and if they feel that the law has been violated for the department of labor to file a lawsuit on that employees behalf retaliation. What this new rule allows for is anti-retaliation now be a part of the OSHA's inspection and citation process.

"So now for the employees who felt discriminated against for reporting an injury can pick up the phone and call OSHA. And an OSAH safety and compliant safety officer will come out, do the investigation, and make the determination of whether the employer engaged in retaliation. And now what employers will see now rather than file with the department of labor having to file a lawsuit, which has always been the case under the statue. Employers will now be faced with receiving citations that say you have for example terminated employee x for reporting a workplace injury or illness.

"Now not only will there be a fine be attached to that citation but as a abatement, which is traditionally a abatement is to fix the hazard. Fix the machine that's not guarded. Fix the fall hazard that hasn't been dealt with. Now under this rule we're going to be seeing abatement that calls for reinstatement of an employee who was discriminated against or potentially even back pay to an employee who has been terminated for reporting a workplace injury or illness.

"So this really takes what should be a safety and health inspection into the realm of an HR inspection. And in my view, OSHA is simply not equipped to doing this. These cases will be heard by administrative law judges of the occupational safety and health review commission who do not normally deal with matters of employer motivation when it comes to making personal decisions.  So in my view this is a clear attempt to circumvent the procedures of section 11C, which OSHA has never liked and has always believed they are not strong enough. Now that it's in the citation process this really gives them a more power to force anti-retaliation.

"So in my view this portion to the standard could be a game changer. It's going to force their employers to get their HR team more involved in the safety and health matters. More involved in OSHA inspections and otherwise more involved in the process all together. So we'll have to see how this plays out. This portion of the standard does take effect soon, August 10th of this year, 2016. So employers now need to be looking at their policies when it comes to reporting injuries and illnesses. Making sure they're reasonable. 

"And really taking a close look at how they handle incentive programs, post drug and alcohol testing, and making sure that they're policies are enforced fairly and consistently. So time will tell how this new standard plays out but there's a lot to keep in mind with respect to the new standard that has recently come down. That's all I have this morning. I appreciate your time. Thank you very much."

Mike Jackson: "Pat thanks so much for your time. That was a lot of great information. If anyone has any questions feel free to reach out to IAML directly. You can ask any questions directed towards us at info@iaml.com. Or you can contact Patrick. Is it okay if people email you questions Pat?"

Patrick Miller: "Absolutely, my email address is pmiller@shermanhoward.com."

Mike Jackson: "Great, thanks everybody for listening and Pat thanks so much for your help today."

Patrick Miller: "Thank you Mike."