The Occupational Safety and Health Administration (OSHA) has amended its recordkeeping regulation, 29 CFR Part 1904, to require many employers to submit OSHA 300 Logs, OSHA 301 forms, and OSHA 300A summaries to the agency electronically. The amendments, which will be published in the Federal Register on May 12, also include provisions designed to prevent employers from retaliating against employees for reporting work-related injuries or illnesses. To abate alleged violations of these provisions, OSHA may order employers to reinstate employees or pay them back pay. The changes will allow OSHA and other stakeholders—including labor unions and plaintiffs’ attorneys—to access injury and illness data and also create a new cause of action for employees who claim their employer retaliated against them for reporting a work-related injury or illness. The final regulation also raises serious questions regarding whether OSHA has the authority under the Occupational Safety and Health Act to enact these changes.
Electronic Submission of Injury and Illness Data
Every establishment with 250 or more employees will be required to submit OSHA 300 Logs, 301 Forms, and 300A summaries electronically every year by uploading them into a database maintained by OSHA. An “establishment” is a single physical location where work is performed. For construction and similar operations where employees do not work at a single location, the establishment is typically the main or branch office, a terminal, or similar location.
OSHA will post the OSHA 300 Logs and 301 Forms for each establishment on its website. OSHA will redact the names of employees and other identifying information before posting. The electronic system will allow OSHA, as well as any member of the public, to access the injury and illness data of any establishment that must report electronically.
The revised regulation also requires establishments in industries listed in Appendix A that have 20 or more employees to submit OSHA 300A summaries electronically. Appendix A is lengthy and includes broad categories such as construction (NAICS 23), manufacturing (NAICS 31-33), utilities (NAICS 22), and agriculture (NAICS 11).
The new electronic submission requirements will be phased in. Covered employers will be required to submit electronically beginning next year. Specifically, on July 1, 2017, employers must electronically submit their 300A summaries for covered establishments. On July 1, 2018, employers must electronically submit their 300 Logs, 301 Forms, and 300A summaries for covered establishments. Beginning in 2019, the deadline will change from July 1 of each year to March 2 of each year. The final rule anticipates that states with their own OSHA plans will implement systems that meet these deadlines.
At the public hearing to discuss the proposed changes, labor union representatives commented that publication of company data would cause employers to retaliate against employees who report work-related injuries and illnesses. Labor union representatives claimed that employers would impose discipline, mandate unwarranted drug tests, or take other steps to discourage employees from reporting. In fact, according to these witnesses, many employers already take these steps to keep recordable injuries and illness rates low.
In response, OSHA included anti-retaliation provisions in the revised regulation. These provisions require employers to take the following steps:
- 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.
- Inform each employee of the procedure for reporting work-related injuries and illnesses.
- Inform each employee that
- employees have the right to report work-related injuries and illnesses; and
- employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illness.
- Refrain from discharging or in any manner discriminating against any employee for reporting a work-related injury or illness.
The provisions apply to all employers, regardless of whether they are required to report to OSHA electronically.
The provisions, which will take effect 90 days from publication in the Federal Register, give employees a new way to allege that their employers have retaliated against them. Section 11(c) of the Occupational Safety and Health Act (OSH Act) currently protects employees who are retaliated against for reporting an injury or illness. Under that provision, an employee has 30 days to file a complaint. The complaint is then investigated by OSHA’s Whistleblower Protection Program, which is separate from OSHA’s enforcement division. If OSHA finds the complaint has merit, the agency goes on to litigate on behalf of the employee, and the case is heard in a federal district court.
The anti-retaliation provisions provide an entirely new cause of action for employees. Rather than filing a Section 11(c) complaint, an employee may now file a complaint with OSHA compliance personnel. An OSHA Compliance Safety and Health Officer will investigate and determine whether the employer violated the anti-retaliation provisions. For example, the compliance officer could make a determination that an injured employee was disciplined for failing to use safety equipment but noninjured employees were not disciplined for violating the same work rule. On that basis, OSHA could issue a citation alleging a violation of the anti-retaliation provisions in the regulation.
To abate the violation, OSHA could require employers to remove discipline from an employee’s file, reinstate an employee, or pay an employee back pay. Employers could contest alleged violations. Appeals would be heard by an administrative law judge, and any decision could be appealed to the Occupational Safety and Health Review Commission. OSHA claims these provisions are necessary to ensure that the records submitted by the employer are accurate: If employees do not report injuries and illnesses because they fear retaliation, then the data submitted by an employer would not be accurate.
OSHA Continues to Promote “Shaming” and Creates a New Cause of Action for Employees
The revisions are significant for two reasons. First, the availability of corporate-wide injury and illness data will allow OSHA to examine whether a company as a whole has had injuries that resulted from similar hazards. OSHA may use this information to issue more “willful” citations. OSHA could determine, for example, that a particular company has had multiple forklift accidents based on the OSHA 300 Logs and 301 forms and decide to characterize a violation as “willful” because of a purported failure to take corporate-wide steps to prevent similar accidents. Given the current press release driven, “regulation-by-shaming” enforcement environment, OSHA is likely to use the data in that manner. The information OSHA publicizes will likely also be fodder for employee-side advocates who would seek to use injury data as leverage.
Second, the revisions set up a system through which OSHA compliance officers act much more like Equal Employment Opportunity Commission (EEOC) investigators. For the first time, OSHA compliance officers will be determining what motivated the employer to issue discipline, e.g., enforcement of a safety rule or injury reporting system or retaliatory animus. The issue will be whether injured employees—as members of the “protected class”—were treated differently than employees who were not injured. Through this system, employees have a new way to litigate retaliation cases. Specifically, OSHA may issue a citation requiring the employer to purge the employee’s personnel file, reinstate the employee, and pay back pay. An employee may elect to complain to OSHA about a purportedly retaliatory action rather than filing a complaint under Section 11(c) of the OSH Act, which protects whistleblowers.
Does OSHA Have This Authority?
Section 8(c) of the OSH Act requires OSHA to “prescribe regulations requiring employers to maintain accurate records” and “make periodic reports” regarding work-related injuries and illnesses. The records are intended to allow OSHA to develop “information regarding the causes and prevention of occupational accidents and illnesses.”
The authority granted in Section 8(c) does not include publishing the injury and illness data on a public website. While publicizing the data clearly advances OSHA’s goal of “shaming” employers that experience work-related injuries and illnesses at their facilities, it is difficult to understand how this advances OSHA’s statutory mandate to gather information.
Similarly, the anti-retaliation provisions in the revised regulation are not necessary to ensure that employees are reporting work-related injuries and illnesses to their employer. Congress included Section 11(c) of the OSH Act for just that reason. Through Section 11(c), employees already have a means to remedy retaliation resulting from the reporting of a work-related injury or illness.
Ogletree Deakins’ Workplace Safety and Health Practice Group will continue to cover the new recordkeeping regulation in detail on the firm’s Workplace Safety and Health blog. Stay tuned for our forthcoming webinar on the electronic recordkeeping regulation and its ramifications on the employer community.