By Mark A. Lies, II and Adam R. Young

Seyfarth Synopsis: New OSHA final rule requires employer to submit data electronically, to be posted on the OSHA website.

On May 12, 2016 the Occupational Safety and Health Administration published the final rules requiring employers to submit injury and illness data electronically. 81 Fed. Reg. 29624.

OSHA will release this information publicly on its website, believing that its disclosure will shame employers into improving workplace safety.   The electronic data submission will also ease OSHA’s data analysis, presumably to ramp up citations against employers based on the frequency of certain types of injuries (such as OSHA’s renewed focus on “ergonomics” injuries) or injuries caused by exposures to certain chemicals or toxic materials.  The final rule also includes new anti-retaliation and injury and illness reporting provisions. The final rule will take effect on January 1, 2017.

Electronic Submission of Injury and Illness Data

Employers with 250 or more employees must submit information electronically from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

Establishments with 20-249 employees operating in what OSHA deems to be “high-risk industries” (including department stores, nursing homes, construction) must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

OSHA will require employers to submit all information from their logs, save for columns with employee names, employee addresses, health care professional names, and health care treatment facilities. The rules do not specify how this information will be submitted electronically.  Though we do not know that this will be a problem, due to privacy laws, employers should not submit information that identifies a specific employee or an employee’s medical information.

Also, the electronic disclosure requirements will apply to employers located in State Plan States.

Online Posting

OSHA will then post this data on a publicly available website, which will be accessible by competitors, contractors, employees, and employee representatives. The specifics of its new data disclosure portal are not explained in the regulations.

Anti-Retaliation and Injury Reporting Procedure

The final rules re-state and enhance protections from retaliation for employees who report work-relate injuries or illnesses. Further, the regulations require that an employer establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.

For additional advice on injury and illness reporting, contact your Seyfarth attorney.