Mike Mallen of Miller & MartinYou are about to be "Nudged."
The Occupational Safety and Health Administration recently issued a final rule that will require certain employers to participate in electronic data collection and reporting of recordable workplace injuries and illnesses.
The final rule on electronic tracking of workplace injuries and illnesses, which took effect in August, creates the largest publicly available data set on recordable injuries and illnesses. While many employers already comply with mandatory record-keeping of incidents, they now are required to report those incidents to OSHA through the agency's website, representing a continuation of what some industry observers perceive as an effort by OSHA to "nudge" employers into workplace safety compliance. OSHA estimates 600,000 employers and 1.3 million establishments are affected by the new requirements.
The new regulation revises OSHA's existing workplace incident reporting requirements. Specifically, each workplace with 250 or more employees that is subject to these reporting regulations is required to electronically submit on an annual basis their work-related injuries and illnesses which are collected on OSHA Forms 300 (Log of Work-Related Injuries and Illnesses), 301 (Injury and Incident Report) and 300A (Summary of Work-Related Injuries and Illnesses), with the first submission deadline set for July 1, 2017. In addition, establishments with 20 to 249 employees in one of 30-plus industries deemed "high risk" - including the manufacturing, construction, utilities, warehousing, transportation and even some entertainment sectors - will also be required to annually submit their Form 300A information online.
Even those employers below the 20-employee threshold may be required to participate. Though the rule does not currently mandate yearly electronic record submissions for these small employers, OSHA can require them to submit data upon notice.
Previously, OSHA was able to access employers' workplace incident data only through inspections or annual injury and illness surveys. With this new rule, OSHA seeks to receive and expand the pool of information made available to them. Armed with the database of workplace injury figures, OSHA will be equipped to target industries and employers that lag behind on compliance with various safety regulations.
OSHA will also publish employer injury and illness records online for public viewing, with certain personally identifiable information removed. OSHA's electronic system for data collection is still under development, but the public will be able to search and download the published data. Public disclosure will, OSHA believes, "nudge" employers to ramp up their workplace injury prevention efforts.
A frequent theme of the comments that OSHA received in response to its proposed rule was a concern that the published data would be misleading, since they will be made available without context about the circumstances of the incident or safety measures and policies adopted by the affected employers.
The final rule will also serve as an enforcement mechanism for prohibiting retaliation, empowering OSHA to issue citations to employers for retaliating against employees who report work-related injuries and illnesses, even if no employee has filed a complaint with OSHA.
If you will be subject to the new electronic submission regulation, you should consider the following for your workplace:
Establish a procedure for employees to report incidents. Now employers must institute a "reasonable procedure" that allows prompt reporting of injuries and illnesses by employees. Prepare a written policy that informs employees of their right to report. One way for employers to meet this requirement is by posting the "It's The Law" worker rights poster created and updated by OSHA.
Think critically about employee training curriculum and reporting procedures. Inform your employees about their reporting rights, and consider whether your staff members who currently administer your OSHA 300-series forms will need additional training in data collection or computer use.
Develop a process for submitting the required information electronically. The rule does not require you to change the way you record injuries and illnesses or increase the type of information to be recorded, but think about how to accurately capture incident data throughout the year in a way that will minimize time spent on the back end to submit that information. Data kept digitally in a CSV or Excel file, for instance, may be easier to prepare for submission than paper files or Word documents.
Remind managers of anti-retaliation practices and the increased scrutiny employers will face under the new rule. Be aware that your workplace injury and illness reporting procedures must not deter or discourage incident reporting. Educate your managers regarding their obligations. Have legal counsel review your safety incentive programs.
These considerations are best practices for navigating through the new rule, but are not intended to be exhaustive and your specific circumstances may necessitate additional policies and procedures.
Mike Mallen, an attorney with Miller & Martin, concentrates his practice in the areas of environmental law, Occupational Safety and Health Administration (OSHA) workplace safety and industrial brownfields.
Erika Hyde is an associate in Miller & Martin's Chattanooga office and practices in the firm's commercial department.