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By: Connie Elder Carrigan

The Occupational Safety & Health Administration (OSHA) recently adopted a new rule that will increase the requirements for employers to report workplace injuries and illnesses. Currently, OSHA requires employers to document and review incident records to “identify hazards, fix problems and prevent additional injuries and illnesses.” However, under the new regulation, employers must now send those records to OSHA. The agency hopes that receiving such records will help improve their enforcement and compliance assistance.

For industries and employers that fall under the purview of OSHA’s recordkeeping regulations—approximately 476,000 establishments—the new rule means more than just the additional administrative hassle of reporting injuries to a governmental agency. Once received, OSHA will post the injury and illness data on a website that is accessible to the public. Although personal information identifying individual employees will not be disclosed, OSHA hopes that the general availability of injury and illness reports will “provide valuable information to workers, job seekers, customers, researchers, and the general public.”

In his commentary outlining the reasons these regulations were implemented, Dr. David Michaels, the Assistant Secretary of Labor for Occupational Safety and Health, stated that the “new rule will ‘nudge’ employers to prevent work injuries to show investors, job seekers, customers and the public they operate safe and well-managed facilities.” The agency’s goal is to use “human behavior and motivation” to discourage employers from shirking safety responsibilities because any injuries that occur in the workplace could potentially end up on the Internet for the world to see.

While additional safety precautions may seem desirable at first blush, OSHA’s regulation and plans for public disclosure of injury information may be a major disadvantage for employers who are covered by the new law. As Rosario Palmieri, Vice President of Labor, Legal and Regulatory Policy for the National Association of Manufacturers pointed out, the new regulation may “lead to the unnecessary public shaming” of employers who report their injuries and illnesses. Additionally, the details the reports will provide will be out of context; numbers will be reported without any explanation and without any comparison to prior data collected before this regulation takes effect. What may be an average year for injuries at a certain establishment could appear excessive without a reasonable backdrop for comparison during the initial years of implementation. As the United States Chamber of Commerce indicated, special interest groups may “use this data to paint a distorted picture of the safety records of companies they are targeting.”

The new rule also prohibits employers from retaliating against employees who report an injury or illness. Employers must inform employees of their right to report work-related incidents and must provide a reasonable procedure for such reporting. In the original proposed rule, OSHA gave examples of safety incentive policies and post-accident drug testing as practices that would discourage employees from reporting work-related incidents and which would be prohibited under the new rule. The new rule qualifies those original prohibitions. Post-accident drug testing is only appropriate in situations in which “employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”

Concerning employee incentive programs, OSHA stated that “they have the potential to discourage reporting of work-related injuries and illnesses without improving workplace safety.” To the extent that incentive programs and policies inhibit an employer’s ability to accurately identify and record incidents, they will now be prohibited.

The new requirements relating to penalties for retaliation and providing avenues for employees’ right to report injuries go into effect this August. Portions of the regulation requiring electronic submission of injury and illness data to OSHA will become effective January 1, 2017. Employers with at least 250 employees and employers in high-risk industries with 20–249 employees must submit the requisite information for 2016 by July 1, 2017.

OSHA’s recent regulation is laudable from the standpoint that it encourages and prioritizes injury prevention. However, the impact on businesses may be extreme. Employers already maintain injury and illness reports; requiring employers to publicly disclose such information may hinder their ability to attract workers or could result in unwarranted scrutiny or negative media attention.

If you have questions about the impact of this decision or any other matter relating to employment practices, please contact Connie Carrigan at ccarrigan@smithdebnamlaw.com.