Latest on OSHA's New Injury and Illness Reporting Final Rule

On May 12, 2016, OSHA revised the Recording and Reporting Occupational Injuries and Illness regulations of 29 CFR 1904 (81 FR 29623). The Final Rule includes many new requirements, including the following:

Periodic electronic submission of injury records to OSHA

Currently, many employers are required to keep detailed records of all work-related illness and injuries using the OSHA 301 Incident Report forms and Form 300 Log. But, OSHA doesn’t get to see those records except as part of an inspection called for some other reason.

In order to obtain more information about workplace injuries and illness, OSHA would like to require establishments with more than 250 employees that are already keeping OSH 300 logs to submit copies of their 300 and 301 forms each year.

OSHA’s goal here is to obtain more information about what injuries and illnesses are actually occurring, their frequency, and their prevalence in various industries. OSHA intends to use this information to better target inspections and to develop new standards for workplace safety. OSHA also intends to post this information publicly, once personally identifying information is removed, so that the public can access the information.

Other Changes in the OSHA Final Rule 

The May 12, 2016 rule also includes other changes to 29 CFR 1904, which:

Require employers to inform employees of their right to report work-related injuries and illnesses free from retaliation.

• Clarify the existing implicit requirement that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting.
• Prohibit employers from retaliating against employees for reporting work-related injuries or illnesses, consistent with the existing prohibition in Section 11(c) of the OSH Act.
• Amend OSHA's existing recordkeeping regulation to clarify the rights of employees and their representatives to access the injury and illness records.

OSHA Injury and Illness Guidance, October 2016

On October 19, 2016, OSHA issued guidance on the rule explaining in further detail what employer actions would be violations of employee’s rights and duties to report workplace injuries and illnesses without burden or retaliation. Examples include the following: 

• The procedure for reporting a workplace injury or illness may not be unreasonably burdensome.
• Employers may not discipline employees for ‘late’ reporting of injuries when it was not reasonably possible to make an earlier report.
• Employers may not discipline employees for reporting injuries, or discourage them from reporting injuries, by demotion, suspension, reassignment, termination, poor performance review, intimidation, harassment, or other similar adverse actions.
• Employers may not discourage injury or illness reporting by mandating post-incident drug testing in all cases. OSHA does not intend to restrict the use of post-incident drug testing when drug- or alcohol-based impairment is likely to have contributed to the incident and for which the test can accurately identify impairment.
• While safety incentive programs are not prohibited, employers may not use reward-based programs to discourage the reporting of occupational injuries.

Ongoing Legal Challanges to OSHA's Final Rule 

Due to litigation and challenges from industry groups, the enforcement date for the new injury and illness reporting rule was extended from August 1, 2016 to November 1, 2016, and then to December 1, 2016. Until recently, the rule was on an indefinite hold due to a pending court injunction.

On November 28, a District Judge in Dallas, Texas denied the request for a preliminary injunction against the implementation of the new OSHA rules. The judge ruled that the industry groups arguing against the rule “lacked evidence sufficient to show a substantial threat of increased injury if the injunction were denied,” according to an article on JD Supra, here.  

This is unlikely to be the last challenge to OSHA’s new injury and illness reporting Final Rule. Lion News will post an update when more information is available.

Is Your Site Ready for OSHA’s New Walking Working Surface Final Rule?

Last month, OSHA finalized new standards for walking-working surfaces in general industry. The Final Rule features updated rules for ladders, stairways, railings, handrails, etc.; new fall arrest and PPE requirements; revised OSHA training requirements; and much more. These new requirements take effect on January 1, 2017.

Tags: and, illness, injury, new rules, osha, reporting and recordkeeping