New OSHA Injury Reporting Rules
As a corollary, and “to ensure the completeness and accuracy of injury and illness data,” the final rule also:
- Creates an explicit requirement that employees must be informed of their right to report work-related injuries and illnesses free from retaliation;
- Specifically requires that an employer's procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and
- Explicitly prohibits retaliation against employees for reporting work-related injuries or illnesses.
The requirement to report data applies to: (1) work locations with 250
or more employees, and (2) work locations with 20 to 249 employees in
specific “high-risk industries” identified in the rule. The rule
includes several types of healthcare industries in its definition of
high-risk industries. Specific healthcare industries that must comply
with this rule if they have 20 or more employees at a particular work
location are:
- Ambulatory healthcare services;
- General medical and surgical hospitals;
- Psychiatric and substance abuse hospitals;
- Specialty (except psychiatric and substance abuse) hospitals;
- Nursing care facilities;
- Residential mental retardation, mental health, and substance abuse facilities;
- Community care facilities for the elderly; and
- Other residential care facilities.
Businesses with 250 or more employees at a work location in industries
covered by the new recordkeeping regulation must submit information from
their 2016 Form 300A by July 1, 2017. These employers will also be
required to submit information from all 2017 forms (300A, 300, and 301)
by July 1, 2018. Starting in 2019, the information must be submitted by
March 2 each year. Businesses with 20-249 employees in high-risk
industries, including those healthcare industries mentioned above, must
submit information from their 2016 Form 300A by July 1, 2017, and their
2017 Form 300A by July 1, 2018. Starting in 2019, the information must
be submitted by March 2 each year.
OSHA will make the injury and illness data public. After removing any
Personally Identifiable Information that could be used to identify
individual employees, OSHA will post the data on its website, and anyone
will be able to download it. Employers in the above-referenced
high-risk industries (and those with 250 or more employees) should begin
planning now to ensure compliance with the January 1, 2017 reporting
deadlines.
The new rule also emphasizes that employees who report workplace
related injuries and illnesses may not be discriminated against or
retaliated against because they have reported such injuries or
illnesses. It provides OSHA with the authority to cite an employer for
retaliation even in the absence of any employee complaint. The
commentary to the rule says:
- Employers must have a reasonable procedure for employees to report work-related injuries and illnesses.
- Employers’ reporting procedures cannot deter or discourage reasonable employees from accurately reporting a workplace injury or illness.
- Blanket or automatic post-accident testing policies are prohibited and will be viewed as taking an adverse action against, retaliating against, or discouraging employees from reporting accidents.
- Employers need not specifically suspect drug use before testing, but there should be a reasonable possibility that drug use by a reporting employee was a contributing factor to the reported injury or illness in order for an employer to require testing, and, even then, the testing should be limited to only the employee who caused the accident rather than everyone involved.
Although the new rule does not prohibit all post-accident/post-injury
drug testing policies, OSHA’s position is that the circumstances of some
accidents make it unlikely that drug use was a contributing factor, and
therefore testing employees in these situations would be viewed as
retaliation. OSHA provides these examples of circumstances where
required drug testing would be suspect:
- After an employee reports a bee sting;
- When an employee has a repetitive strain injury;
- After an injury caused by a lack of machine guarding; or
- When a machine or tool malfunctions.
The rule acknowledges many employers implement
post-accident/post-injury drug testing policies because they are located
in states that offer workers’ compensation premium reductions for
enacting Drug Free Workplace Policies. Compliance with these workers’
compensation programs or other state or federal laws or regulations
requiring post-accident/post-injury or reasonable suspicion testing are
still permitted.
Employers must also specifically inform employees: (i) they have the
right to report work-related injuries and illnesses; and (ii) the
employer is prohibited from retaliating against employees for reporting
work-related injuries or illnesses. Employers also must establish a
reporting procedure that does not deter or discourage an employee from
reporting work-related injuries and illnesses. These posting and
reporting requirements are effective as of November 1, 2016.
In light of OSHA’s new rule, employers in the health care industry
should review drug testing policies as well as accident/injury reporting
policies to ensure they do not violate OSHA's new rules.
Also See: Provisions call for employers to electronically submit injury and illness data that they already record.
Also See: Provisions call for employers to electronically submit injury and illness data that they already record.
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