New OSHA Electronic Reporting Rule will put Company Records on the Internet, Impose “Whistleblower” Sanctions

Washington, DC, May 12, 2016 – OSHA has published a new reporting rule for employers that could pose challenges for NASF members. The regulation, which is effective August 20, 2016, would require employers to electronically submit their injury and illness records to OSHA. Actual reporting of will be phased in beginning in 2017. In the past, injury and illness records were only accessible to OSHA during inspections.

Under the new provisions, OSHA plans to take that information and post it on the Internet for public access and review. This represents a major and historic shift in how employer records are handled. Among other things, your company may be put in the spotlight as unsafe if your injury and illness records are taken out of context and mischaracterized.

NASF has voiced concerns over the measure since OSHA first proposed it in 2013 through a broad-based industry group called the Coalition for Workplace Safety. The coalition is now considering litigation options against OSHA for exceeding its legal authority.

Why might the rule be a problem for many NASF members?

OSHA Will Post Company Injury and Illness Records on the Internet?

The regulation will apply to both large and small employers. Facilities with 250 or more employees in industries covered by the rule – which OSHA estimates to be around 34,000 locations – must electronically submit to OSHA injury and illness information from OSHA Forms 300, 300A and 301. Facilities with 20-249 employees on OSHA’s list of “high hazard” industries – or potentially another 432,000 locations – must electronically submit information from OSHA Form 300A only.  Surface finishing operations are on that list, which can be found here.

As we noted above, industry has registered serious concerns with the rule since OSHA proposed it two years ago. The Coalition for Workplace Safety has noted this week that while OSHA does have the authority under its statute to collect injury and illness information from employers, it does not have the authority to publish it on the internet.

OSHA Will Issue Citations to Employers who Appear to be Discouraging Reporting of Injuries and Illnesses through Incentive Programs

In a new twist that was unexpected and is ripe for a legal challenge, the rule also contains “whistleblower” requirements that did not appear in the original proposed rule in 2013. Under the new rule, OSHA itself can decide to issue a citation to an employer when the agency believes that an employer has discouraged or suppressed an employee from reporting an injury – even if that employee has never filed a whistleblower claim.

With the whistleblower mechanism, OSHA has created for itself a new authority to challenge company safety incentive programs that the agency feels are keeping workers from reporting an injury or illness. So for companies with certain types of programs that reward employees for safety improvements, the rule will make it much easier for OSHA to issue a “whistleblower” citation.

While NASF is still reviewing the just-published rule, this element among others is a major concern and OSHA appears to be overreaching its legal authority. The whistleblower provisions never appeared in the agency’s originally proposed rule three years ago, and although OSHA discussed the issue in a supplemental notice in 2014, industry has not had a chance to meaningfully comment on them.

A Top Priority for OSHA and Labor Unions

The rule has been one of U.S. labor leaders’ most important priorities for the Obama administration, partly as a way to get more access to all employers’ records. The initiative is viewed as a way to boost organizing efforts and to spotlight and “shame” employers by reviewing records and publicizing trends in industries, regions or within certain companies.

With the rule’s announcement, AFL-CIO President Richard Trumka said the rule “will bring workplace injury and illness reporting into the 21st century and provide important new protections to workers who report injuries.” He noted that without the new rule, it’s “impossible to know which employers have good or bad workplace injury records.”

OSHA chief David Michaels this week said the new rule “will create a huge data set that can be used for many purposes, including tracking trends and providing employers with a tool they can use to benchmark against other companies in their industries.”

NASF is Closely Tracking OSHA Developments

NASF has been closely tracking OSHA’s regulatory efforts in the final year of the Obama administration. We will keep you informed on new developments in the electronic reporting rule and other major initiatives in the coming weeks and months.

In the meantime, OSHA’s Fact Sheet can be accessed here, as well as the agency’s new web page summarizing the rule.

Posted in Law & Regulation