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Birmingham Bar Association Bulletin

Labor & Employment Law Jennifer W. (Jennie) Pickett OSHA’S New Reporting and Anti-Retaliation Rule Historically, OSHA has required most employers to keep records of work-related injuries and illnesses, and to report fatalities and certain serious injuries. The requirements were expanded in 2014 to include reporting of all in-patient hospitalizations, amputations and losses of any eye that occur within a certain period. “Section 8 of the Occupational Safety and Health Act of 1970 (OSH Act) gives the Secretary of Labor broad powers to require covered employers to maintain and provide access to occupational safety data, but this information has traditionally been private.”1 OSHA has now issued a rule that requires certain employers to submit workplace safety information electronically and prohibits employers from retaliating against workers who report such incidents. 2 WHAT IS THE RULE? In November of 2013, OSHA presented a proposed rule to add requirements for electronic submissions and publication on the OSHA website for public review. When the proposed rule was published for comment, concerns arose that there would be a tendency toward under-reporting since the injury and illness information was being made public. OSHA, therefore, expanded the final rule to include anti-retaliation measures. The final rule, which at the time of this writing was to go into effect January 1, 2017, states as follows: Certain employers must electronically submit injury and illness information that they are already required to keep under existing OSHA regulations: - companies with 250 or more employees must electronically submit each quarter all three OSHA forms: 300 (Log of Work-Related Injuries and Illnesses); 301 (Injury and Illness Incident Report); and 300A (Summary of Work-Related Injuries and Illnesses); - companies with 20-249 employees in certain industries with historically high rates of occupational injuries and illnesses (e.g., construction, manufacturing, utilities and agriculture) must electronically submit Form 300A annually; and - all other employers not required to submit information on a routine basis may be required to electronically submit under the rule upon written notification from OSHA; OSHA will post establishment-specific injury and illness data (without identifying employee information) on its public website: www.osha.gov. OSHA may cite an employer for taking adverse action against an employee for reporting a work-related injury or illness, even if the employee does not file a retaliation complaint under the whistleblower provision. In order to comply with the anti-retaliation rule, employers are required to do the following: - post OSHA’s Job Safety and Health - It’s the Law worker rights poster from April 2015 or later to inform employees of their right to report work-related injuries and illnesses free from retaliation; - implement a procedure for reporting that must be reasonable and must not deter or discourage employees from reporting; and - not retaliate against employees for reporting. WHAT IS THE POLICY BEHIND THE RULE? The public policy behind the new reporting rule is to encourage workplace safety and discourage employer retaliation. OSHA intends the publication of work-related injury and illness information to provide quick access to details amongst the various industries; to provide potential investors with new tools to evaluate risk and potential liability; and for state and local governments to consider when reviewing bids for large construction contracts. Insofar as the anti-retaliation provision is concerned, OSHA reasons that employees may not have the time or knowledge necessary to file a complaint or may even fear additional retaliation. OSHA has specifically addressed concerns regarding safety incentive programs and post-accident drug and alcohol testing. One exam- 12 Birmingham Bar Association


Birmingham Bar Association Bulletin
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