The most talked-about changes to OSHA’s new recordkeeping standard are its data submission requirement and OSHA’s intent to publish that data in a searchable online database. However, the Occupational Safety and Health Administration (OSHA) also revised the requirements in the rule that affect workers’ right to report work-related injuries and illnesses, and employers’ responsibility to keep workers informed about that right.
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Here’s what’s changing as a result of the new rule.
Getting People Talking
One of OSHA’s stated goals for the revised recordkeeping rule is to improve the completeness and accuracy of injury and illness data collected by employers and reported to OSHA. Some commenters on the proposed rule suggested that OSHA’s plan to publish the data it collects could cause employers to put policies in place that discourage employee reporting of injuries and illnesses. Since OSHA already considers underreporting of work-related injuries and illnesses a problem, the Agency was very concerned about this possibility. Rather than back away from its plan to publish the data, however, OSHA strengthened the provisions in the recordkeeping rule regarding the reporting of injuries and illnesses by employees.
In order to discourage policies that suppress employee reporting of injuries and illnesses, paragraphs 1904.35 and 1904.36 of OSHA’s revised final rule:
- Requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation. Under the previous rule, employers were required to tell employees how to report work-related injuries and illnesses. Under the revised rule, employers are additionally required to tell employees that they have a right to make such a report without fear of discipline, termination, or other forms of retaliation.
- Clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable. Under the previous rule, employers were already required to set up a way for employees to promptly report work-related injuries and illnesses. The new rule specifically states that reporting procedures must be reasonable and that a procedure that would deter or discourage reporting (as described in OSHA’s March 12, 2012, enforcement Memorandum: Employer Safety Incentive and Disincentive Policies and Practices) is not reasonable. Although the employer’s obligation has not changed, OSHA believes that the final rule will enable it to more effectively enforce the requirement against employers whose reporting procedures it takes issue with. As examples of reporting requirements that OSHA considers “unreasonable,” OSHA cites reporting programs that have too many steps to be convenient for workers, and “prompt reporting” requirements that impose discipline on workers who do not report quickly enough.
- Prohibits employers from retaliating against employees for reporting work-related injuries or illnesses. This prohibition is already found in Section 11(c) of the OSH Act, so OSHA does not consider it a new requirement. However, incorporating the requirement into Part 1904 expands OSHA’s ability to enforce the requirement. The OSH Act only authorizes OSHA to take action against an employer that retaliates against an employee for reporting a work-related illness or injury if the employee files a complaint with OSHA within 30 days of the retaliation. Under the revised recordkeeping standard, OSHA can take action against the employer regardless of whether the employee files a complaint.
The data submission requirements in the new rule do not take effect until January 2017, but the changes discussed above go into effect sooner: August 10, 2016.
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