Nemeth Bonnette Brouwer Employment Blog

Submission and Publication of Injury Reports

Under the new regulations, employers must electronically submit injury and illness records to the Occupational Safety and Health Administration (OSHA). What records employers must submit and when they must submit them differs by employer size and industry.

• Employers in all industries who have employed 250 or more employees at any time during the year are required to annually submit information from OSHA Form 300, Log of Work-Related Injuries and Illnesses, Form 300A, Summary of Work-Related Injuries and Illnesses, and Form 301, Injury and Illness Incident Report.
• Employers in these industries employing 20-249 employees are required to annually submit information from OSHA Form 300A, Summary of Work-Related Injuries and Illnesses.
• Employers of all sizes and in all industries must electronically submit information to OSHA at any time upon request.

Employers have always been required to maintain completed OSHA forms. However, OSHA could only obtain the information through onsite inspections or through a survey of employers. Now, employers will be required to annually provide this information to OSHA who will then post the information on its website which will be available to the general public (including competitors, newspapers, labor unions, etc.). OSHA will be able to use employer-specific information to “target” enforcement efforts and “will be better able to identify small and medium-sized employers who report high overall injury/illness rates.” OSHA also says that “public disclosure of data can be a powerful tool in changing behavior.”

Injury reports must be electronically submitted over the next three years according to the following timeline:

All other employers must submit information to OSHA upon request.

Anti-Retaliation Provisions

The new rules also expand prohibitions on retaliating against employees who report work-related injuries or illnesses. The new rules prohibit employers from discharging or in any manner discriminating against an employee who reports an injury or illness.

Injury Reporting Procedures

Finally, the new regulations require that employers have reasonable procedures in place for employees to report an injury or illness. This procedure would include informing employees about such a procedure, that the employees have a right to report work-related injuries or illnesses, and that employers cannot retaliate against them for doing so (such as discharging them or discriminating against them). While not defining what a “reasonable” procedure would be, the regulations do state that a procedure is not reasonable if it would “deter or discourage” employees from “accurately reporting” an injury or illness. Factors that might “deter or discourage” an employee from reporting an injury or illness may include a requirement that the report must be immediate. Other deterrents noted could be coworker teasing or automatic post-injury drug testing.

The new anti-retaliation and reporting procedure sections of the rules become effective August 10, 2016.

Considerations for Employers

Employers should:

1. review their capability of compiling and electronically submitting the required information to OSHA;
2. revise their OSHA training materials and employee handbooks to inform employees about the reporting procedure, that they have the right to report injuries or illnesses, and that the employer is prohibited from discharging or discriminating against the employee for reporting an injury or illness; and
3. review their injury reporting procedures, if they have any, to determine if the procedures could be interpreted to “deter or discourage” employees from reporting work-related injuries or illnesses.