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Wednesday, May 25, 2016

OSHA Rule Requires Public Electronic Reporting of Injuries by Employer

By: Thomas Eden


Recently, the Occupational Safety and Health Administration (OSHA) amended its occupational injury and illness record keeping rules to require electronic submission of injury records to a publicly accessible OSHA website. This is part of OSHA efforts to shame employers into compliance.  The new electronic submission requirements will be phased in as follows:

·               ·        Large (250+) and small (20-249) establishments must submit only the 300A Annual Summary for the first year, calendar year 2016.

            ·         In subsequent years those establishments with 250 or more employees will also have to include their OSHA 300 Logs and OSHA 301 Incident Reports.
·        
            ·         In subsequent years, those establishments with 20-249 employees must submit only the 300A Annual Summary.

For the first two years under the new rule, the submission deadlines for submitting the previous calendar year’s records are July 1, 2017; July 1, 2018; and then beginning in 2019, and for every year thereafter, March 2.

In addition to the new electronic submissions putting a much greater volume of establishment-specific injury and illness information in the hands of OSHA, which has acknowledged that it will use the additional information to conduct targeted inspections, the information will also be accessible to the public via a searchable website database. For example, a union could use the information as an organizing tool, a reporter could publish the information, or a disgruntled former employee could base a complaint to OSHA on the recordkeeping information. It will be readily available for unions, public interest groups, the media, and any other individuals or organizations to use for any purpose.  Employees could also easily access the information to determine whether their employer has recorded the injuries and illnesses that have occurred, and then complain to OSHA if they are not satisfied that a case was recorded or recorded properly.

"Reasonable" reporting procedures and retaliation: The new rule also includes anti-retaliation provisions that were not in the initial, proposed version, reportedly in response to concerns expressed by organized labor and other groups that employers might be pressuring their employees not to report injuries and illnesses.  Beginning August 10, 2016, employers are required to inform employees of their right to report work-related injuries and illnesses free from retaliation, and to establish “a reasonable procedure” for employees to report work-related injuries and illnesses “promptly and accurately.” 

The new rule also calls into question any employer that conducts post-injury drug tests for all reported injuries.  OSHA states that unless it appears that the injury was a result of an impairment, requiring a post-injury drug test will be viewed as “unreasonable.” OSHA would apparently require some objective evidence of impairment before allowing a post-injury drug test, making the test in effect what most drug testing policies call “reasonable suspicion testing.”

It remains to be seen what parts, if any, of the new rule will be challenged in court, and therefore whether it will go into effect as presently scheduled on August 10, 2016. 

Tommy Eden is a partner working out of the Constangy, Brooks, Smith & Prophete, LLP offices in Opelika, AL and West Point, GA and a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. The above information was taken from a more extensive Client Alert published by his law firm’s OSHA Practice Group. Tommy can be contacted at teden@constangy.com or 334-246-2901. Blog at www.alabamaatwork.com with complete update and links.