WHAT EMPLOYERS NEED TO KNOW ABOUT OSHA’S NEW ELECTRONIC RECORD RULES!

By Robert G. Chadwick, Jr, Managing Member, Seltzer Chadwick Soefje, PLLC

On May 12, 2016, OSHA published a Final Rule amending its recordkeeping regulations to include new electronic submission mandates for certain work establishments.  This Rule was published at the  same time as new anti-retaliation regulations explained in this blog’s May 12, 2016’s post entitled What Employers Need to Know About OSHA’s New Anti-Retaliation Regulations!  The new electronic recordkeeping mandates will be phased in over two years.

Which Work Establishments Must Comply With the Final Rule? 

The new electronic recordkeeping mandates apply to two groups of establishments:

  • An establishment with 250 or more employees; or
  • An establishment with 20-249 employees which is classified in an industry listed in Appendix A to the Final Rule. Appendix A lists 66 industries.

What Does the Final Rule Mandate?

The Final Rule mandates that establishments with 250 or more employees electronically submit injury and illness data they are already required to record on their onsite OSHA Forms 300, 300A and 301. See What Employers Need to Know About OSHA Injury/Illness Records Mandate, posted on March 14, 2016. The Final Rule mandates that a covered establishment with 20-249 employees electronically submit its OSHA Form 300A.

How Will the Mandated Electronic Information be Submitted?

OSHA will provide a secure website for the electronic submission of information.

Does the Final Rule Replace Existing Injury/Illness Records Mandates?

No. If an establishment is already required to create and maintain an OSHA Form 300, 300A and 301, the establishment will still be required to maintain the Form even if the electronic submission mandates do not apply. Similarly, if an establishment is partially exempt from maintaining OSHA injury/illness records, the partial exemption remains.

What is the Timetable For Phasing In the New Mandates?

Covered establishments with 250 or more employees must electronically submit information from their 2016 OSHA Forms 300A by July 1, 2017  Such employers must electronically submit information from their 2017 OSHA Forms 300, 300A and 301 by July 1, 2018. Beginning in 2019 and every year thereafter, the mandated information must be electronically submitted by March 2.

Covered establishments with 20-249 employees must electronically submit information from their 2016 OSHA Forms 300A by July 1, 2017, and their 2017 OSHA Forms 300A by July 1, 2018.  Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

What Does the Final Rule Authorize OSHA to Do With Electronically Submitted Information?

Some of the data will be posted to the OSHA website.  OSHA maintains that “public disclosure will encourage employers to improve workplace safety and provide valuable information to workers, job seekers, customers, researchers and the general public.”

What Does the Final Rule Mean for OSHA State  Plans?

OSHA State Plan states must adopt requirements that are substantially identical to the requirements in the Final Rule within 6 months.

What Does the Final Rule Mean for OSHA Inspections?

Increased access to injury and illness data will allow OSHA to better (1) target establishments for inspection, (2) evaluate whether or not an OSHA violation was willful, and (3) determine the fines which should be proposed for an OSHA violation.

 

 

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WHAT EMPLOYERS NEED TO KNOW ABOUT OSHA’S NEW ANTI-RETALIATION REGULATIONS!

By Robert G. Chadwick Jr., Managing Member, Seltzer Chadwick Soefje, PLLC

On May 12, 2016, OSHA published a Final Rule amending its recordkeeping regulations to include new anti-retaliation protections for employees who report work-related injuries and illnesses. The new anti-retaliation protections are effective August 10, 2016.

What Does the Final Rule Prohibit of Employers?

The Final Rule makes it unlawful for an employer to “discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.”

What Does the Final Rule Require of Employers?

The Final Rule requires employers to take the following actions:

  • Establish “a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness;”
  • Inform “each employee of [its] procedure for reporting work-related injuries and illnesses;” and
  • Inform “each employee that (1) Employees have the right to report work-related injuries and illnesses; and (2) Employers are prohibited from discharging or in any manner discriminating against any employee for reporting a work-related injury or illness.”

What Enforcement Options are Available for a Violation of the Final Rule?

The Final Rule seemingly allows for two enforcement options in the event of retaliation.  First, the Final Rule implies that discrimination against an employee for reporting a work-related injury or illness is itself a recordkeeping violation which can form the basis of an OSHA citation and fines.   OSHA inspections are thus an option for enforcement of the new anti-retaliation protections.

Second, the Final Rule interprets Section 11(c) of the OSH Act as already prohibiting retaliation “against an employee for reporting a work-related fatality, injury or illness.” Section 11(c) (1) provides a 30-day window for an employee to file a complaint, (2) is enforced through investigations conducted by OSHA’s Whistleblower Protection Program,  (3) authorizes the Department of Labor to  bring suit against an employer in a U.S. District Court for unlawful retaliation, and (4) authorizes a U.S. District Court “to order all appropriate relief including rehiring or reinstatement of the employee to his former position with back pay.”