OSHA ALERT: New Reporting and Recordkeeping Rules Require Public Reports of Injuries and Illness

On May 11, 2016, OSHA issued a final rule to revise its Recording and Reporting Occupational Injuries and Illnesses regulations. The final rule requires employers in certain industries to electronically submit to OSHA injury and illness data that employers already are required to keep under existing OSHA regulations, and, in some cases, to disclose such information to their employees and the general public. The frequency and content of these compulsory submissions depends on the size and industry of the employer. Data submitted will be published on a publicly accessible Web site. Only the identity of the individual employees affected will be shielded from disclosure.

The final rule also requires employers to remind employees of their right to report work-related injuries and illnesses free from retaliation; clarifies 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; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. Existing recordkeeping regulations are amended to clarify the rights of employees and their representatives to access the injury and illness records.

The entire rule takes effect January 1, 2017, though portions become effective as soon as August 2016.

OSHA requires employers with more than 10 employees in most industries to maintain records of occupational injuries and illnesses using an OSHA Form 300, the "Log of Work-Related Injuries and Illnesses." Employers also must prepare a supplementary OSHA Form 301 "Injury and Illness Incident Report" with additional details about each case recorded on the OSHA Form 300. At the end of each year, employers must prepare a summary report of all injuries and illnesses on the OSHA Form 300A, which is the "Summary of Work Related Injuries and Illnesses," and post the form in a visible location in the workplace.

The new rule amends OSHA's recordkeeping regulations to require electronic submission of this information. Establishments with 250 or more employees will have to electronically submit information from Forms 300, 300A, and 301 to OSHA on an annual basis. Establishments in designated industries (a long list, including agriculture, construction, manufacturing, transportation, and health care) with 20 or more employees, but fewer than 250 employees, in certain designated industries, and others upon notification from OSHA, to electronically submit information from their part 1904 annual summary (Form 300A) to OSHA on an annual basis.

Once the rule is in effect, any member of the public will be able to search a data base by employer or establishment and view the all of a company's records of workplace injuries and illness. OSHA stresses that the electronic submission requirements do not add to or change any employer's current obligation to create and retain injury and illness records, but the public disclosure aspect is definitely new, and Web access makes it infinitely easier for anyone to search. (In their notice, OSHA states that this will make it easier for investors to identify industries with low injury rates; they fail to mention that it also will facilitate the recruitment of plaintiffs by lawyers assembling class actions.)