On May 12, 2016, the Department of Labor’s Occupational Safety and Health Administration (OSHA) issued a final rule revising and updating its Recording and Reporting Occupational Injuries and Illnesses regulation.
Under current OSHA regulations, most businesses (some industries with low rates of hazard are exempt) with more than ten employees are required to keep records of occupational injuries and illnesses at their establishments and to create annual summaries. OSHA’s final rule amends those recordkeeping regulations by adding mandatory reporting obligations for certain businesses. Per the new rule, establishments with 250 or more employees must electronically submit information from their recordkeeping forms (Forms 300, 300A, and 301) to OSHA or OSHA’s designee on an annual basis. For these employers, the 2016 Form 300A must be submitted by July 1, 2017, and all three 2017 forms must be submitted by July 1, 2018. Beginning in 2019, all subsequent information must be submitted annually by March 2.
Moreover, businesses in “high hazard industries” (e.g., department stores, nursing homes, or construction companies) with between 20 and 249 employees must electronically submit information from their Form 300A to OSHA or its designee annually, with the 2016 Form 300A due by July 1, 2017, and the 2017 Form 300A due by July 1, 2018. Beginning in 2019, all subsequent information must be submitted annually by March 2. The rule also requires any employer to electronically submit its recordkeeping to OSHA upon notification from the agency. OSHA will post the data received from employers on a publicly available website.
Furthermore, in addition to the existing requirement that employers inform employees how to report occupational injuries and illnesses, the final rule now requires that employers inform employees of their right to report work-related injuries and illnesses. The employer’s established procedure for reporting such injuries and illnesses must be reasonable, cannot deter or discourage employees from reporting, and the employer cannot take retaliatory action against employees for such reporting.
This updated anti-discrimination and anti-retaliation rule will take effect for all employers on August 10, 2016. In its preamble to the final rule, OSHA takes a broad view of its prohibition against any “adverse action that could well dissuade a reasonable employee from reporting a work-related injury or illness.” Importantly, OSHA interprets the prohibition to cover post-injury drug testing policies, and the agency concludes that drug testing alone can rise to the level of “adverse employment action.” Employers must “limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.” As such, in order to comply with this new rule, employers with mandatory post-accident drug testing programs should amend their policies to provide that post-accident drug testing will only be required in certain circumstances.
Similarly, OSHA states that it views employer-safety “incentive programs” as retaliatory to the extent that an employee is denied a benefit on the basis of any reported injury or illness. Conversely, however, employers may incentivize employees for correctly following safety rules or for participating in safety-training exercises or classes. Employers should therefore take a look at their policies to ensure that no employee incentive or reward is contingent upon whether an employee chooses to report a workplace injury or illness.
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