July 21, 2016

OSHA Delays Enforcement of Its Final Rule that Aims to Prevent Workplace Injuries and Illnesses

Darryl Wilson, Esq.

On May 11, 2016, the U.S. Department of Labor’s Occupational Safety and Health Administration issued a final rule[1] aimed to transform its current reporting system for work related injuries and illnesses. The rule’s primary focus was to provide an electronic data collection system geared towards informing workers, employers, the public, and OSHA about workplace hazards in efforts to prevent further injuries and illnesses. The new rule did not add to or change an employer’s obligation to keep records of injuries and illnesses under the Recording and Reporting Occupational Injuries and Illnesses regulation.

Currently, OSHA requires many employers to keep a record of injuries and illnesses with the idea that both, employees and employers, would identify the hazardous conditions, fix them, and work towards preventing any reoccurring accidents. Interesting to note, the Bureau of Labor Statistics reports that there are over three million work related injuries or illnesses suffered by employees in a calendar year. However, many of these injuries or illnesses go unnoticed because there is no public information informing individuals of these incidents. OSHA’s new rule works to fix this problem by publishing a list of work related injuries and illnesses. So, the big question is, what exactly does this mean for employers?

Based on the guidelines of the new rule, employers in high-hazard industries will be required to send collected data for workplace injuries and illnesses to OSHA for them to publicly post on the agency’s website. Establishments with 250 or more employees in industries covered by the recordkeeping regulation must electronically submit to OSHA injury and illness information from OSHA Forms 300, 300A, and 301. Establishments with 20 through 249 employees in certain industries must electronically submit information from OSHA Form 300A only.

OSHA’s Assistant Secretary Dr. David Michaels said, “Since high injury rates are signs of poor management, no employer wants to be seen publicly as operating a dangerous workplace. Our new reporting requirements will nudge employers to prevent work injuries and illnesses to demonstrate to investors, job seekers, customers, and the public that they operate safe and well-managed facilities. Access to injury data will also help OSHA better target our compliance assistance and enforcement resources at establishments where workers are at greatest risk, and enable big data researchers to apply their skills to making workplaces safer.”[2]

Because the injuries will be made public under the new rule, the name of the game for employers will be to actively compete to keep their workplaces safe to prevent injuries and illnesses. Safer environments will also attract quality employees committed to making their workplaces safe, which creates a winning situation for everyone involved. Additionally, the rule aims to protect employees’ rights by allowing them to report injuries and illnesses without the fear of retaliation from their employers. OSHA’s final rule provides that employers must have a reasonable procedure for reporting injuries and illnesses that do not discourage employees from reporting their injuries or illnesses. OSHA’s goal is to create a system that will reassure employees’ job security, promote a safe work environment, and provide more accuracy of records surrounding work related injuries and illnesses.

Originally, OSHA’s new requirements were set to take effect on August 10, 2016, with phased in data submission beginning on January 1, 2017. However, on July 13, 2016, OSHA decided to delay the enforcement of the new requirements until November 1, 2016. This decision came shortly after a lawsuit was filed by several employer organizations that challenged certain provisions of the final electronic reporting rule. The lawsuit attacked the anti-retaliation sections of the rule and asked the court to declare the rule unlawful.

OSHA is currently developing educational materials and offering enforcement guidance to provide to employers that are subject to the requirements in efforts to make sure that they are in compliance with the new provisions.

[1] https://www.federalregister.gov/articles/2016/05/12/2016-10443/improve-tracking-of-workplace-injuries-and-illnesses

[2] U.S. Dept. of Labor Occupational Safety and Health Administration. OSHA’s Final Rule to ‘Nudge’ Employers to Prevent Workplace Injuries, Illnesses. Washington, D.C.: U.S. Dept. of Labor Occupational Safety and Health Administration, 11 May 2016. Print.