OSHA Injury/Illness Reporting: Keys to a Safer Workplace 

OSHA Injury/Illness Reporting: Keys to a Safer Workplace

As of January 1, 2017, OSHA’s new rule requires certain employers to electronically submit injury and illness data that they are already required to record on their onsite OSHA Injury and Illness forms (300, 300A and 301).

So, why the change to electronic reporting?

OSHA believes public disclosure of injury and illness reports will promote safer working environments. Employers who know their records will be public are more likely to focus more attention to the safety of their workplace.

A safer work environment will not only save the lives of employees, it’s ultimately good for the employer’s bottom line as well. The new regulation will also improve the data reported to OSHA, since there are specific guidelines that prevent retaliation against employees who report workplace injury or illness.

Do the new rules apply to me?

The electronic reporting requirements are slightly different for companies with 20-249 employees vs. those companies who have 250+ employees.

Both categories of companies have a July 1, 2017, submission deadline. Beginning February 2017, OSHA will provide a secure website where employers can either manually enter their data, upload a CSV, or for those users of automated record-keeping systems, they will have the ability to transmit data electronically via an API (application programming interface).

20-249 Employees 

250+ Employees

  • Form 300A is due by 7/1/2017
  • In 2018, Forms 300A, 300 and 301 are due by 7/1/2018
  • Beginning 2019, submissions of the 3 forms are due on March 2nd annually

Anti-Retaliation Measures

OSHA’s new ruling also ensures workers the right to a safe work environment and the ability to report injury or illness free from retaliation. The anti-retaliation provisions focus on three primary elements:

  1. Employers must inform their employees of their right to report work-related injuries and illnesses. This requirement can be satisfied by posting the OSHA Workplace Poster, available here.
  2. Employers must have a reasonable process and procedure in place for reporting workplace injury or illness.
  3. The rule allows OSHA to act even if there was no timely 11(C) complaint filed.

There are three policies that OSHA considers retaliatory, so employers should review their existing policy wording to make sure it complies with the anti-retaliation protections in the new rule.

  1. Disciplinary/employee accountability policy – cannot use the policy to retaliate again illness/injury; avoid vague terms in policy wording
  2. Substance abuse policy – post-incident drug testing is only acceptable if there is a reasonable possibility drug use could have contributed to illness or injury
  3. Safety incentive program – cannot be used as an incentive to not report (e.g., cannot award incentive for the team/division with lowest injury reports); rewards should promote and maintain a positive safety culture

Below are some of OSHA’s FAQs regarding the new rule:

What does the final rule do?

The final rule revises OSHA's regulation on Recording and Reporting Occupational Injuries and Illnesses (29 CFR 1904). The new rule requires certain employers to electronically submit injury and illness data to OSHA that they are already required to keep under OSHA regulations. The content of these establishment-specific submissions depends on the size and industry of the employer.

In order to ensure the completeness and accuracy of injury and illness data collected by employers and reported to OSHA, the final rule also:

  1. Requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation;
  2. 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
  3. Incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.

Does the rule require employers to start keeping new records or change how they keep the records?

No. The new requirement does not add to or change an employer's obligation to complete, retain, and certify injury and illness records. It only requires certain employers to electronically submit some of the information from these records to OSHA.

Why does OSHA address retaliation in this rule? Isn't it already against the law to retaliate against an employee for reporting a workplace injury or illness?

Section 11(c) of the Occupational Safety and Health Act already prohibits any person from discharging or otherwise discriminating against an employee who reports a fatality, injury, or illness. However, OSHA may not act under that section unless an employee files a complaint with OSHA within 30 days of the retaliation.

In contrast, under the final rule, OSHA will be able to cite an employer for retaliation even if the employee did not file a complaint, or if the employer has a program that deters or discourages reporting through the threat of retaliation. Often the point of retaliating against an employee who reports a hazard is to intimidate them from asserting their rights. This new authority is important because it gives OSHA the ability to protect workers who have been subject to retaliation, even when they cannot speak up for themselves. The rule gives OSHA an important new tool in encouraging employers to maintain accurate and complete injury records.

How can employers use this information to improve their own safety record?

Employers can use this information to benchmark their own safety performance. Currently, employers have no way to compare their safety performance with other firms in their industry. Using data collected under the final rule, employers will be able to compare injury rates at their establishments to those at comparable establishments, and set workplace safety goals benchmarked to other establishments in their industry.

NEW: Are the electronic reporting requirements based on the size of the establishment or the size of the firm?

The electronic reporting requirements are based on the size of the establishment, not the firm. The OSHA injury and illness records are maintained at the establishment level. An establishment is defined as a single physical location where business is conducted or where services or industrial operations are performed. A firm may be comprised of one or more establishments.

To determine if you need to provide OSHA with the required data for an establishment, you need to determine the establishment's peak employment during the last calendar year. Each individual employed in the establishment at any time during the calendar year counts as one employee, including full-time, part-time, seasonal, and temporary workers.

All establishments with 250 or more employees in industries covered by the recordkeeping regulation must electronically submit to OSHA injury and illness information from OSHA Forms 300, 300A, and 301. Establishments with 20-249 employees in certain industries must electronically submit information from OSHA Form 300A only.

Questions or Need Help?

Give us a call at (512) 301-1451 and we’ll be happy to assist in answering your questions.

Additional Useful Links and Guidance:

OSHA Website on the Final Rule - https://www.osha.gov/recordkeeping/finalrule/

OSHA Fact Sheet on the Final Rule - https://www.osha.gov/Publications/OSHA3862.pdf

Complete List of FAQs - https://www.osha.gov/recordkeeping/finalrule/finalrule_faq.html


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