OSHA’s new Recording and Reporting Occupational Injuries and Illnesses rule was set to go into effect August 10. But that has been delayed until January 1, 2017. OSHA officials say they put off enforcement because they need more time to work with employers. They want to offer more information and guidance about the rule, which revised the OSHA regulation on Recording.The final rule requires some employers to file reports about workplace incidents electronically. The specific data required depends on the company’s industry and size. The rule also:

• Requires employers to inform employees that they have the right to report work-related injuries or illnesses without fear of retaliation
• Clarifies an employer’s obligation to provide a reasonable reporting procedure for employees
• Retains current statutes that prohibit employers from retaliating against employees who do report work-related injuries or illnesses 

More information, available to more people

For the first time, these records will be made public. OSHA will first remove any Personally Identifiable Information to protect individual employees. Records will be posted on OSHA’s website. That means anyone will be able to see (and download) a company’s jobsite safety record. And some employers are not happy about that. OSHA says they won’t identify companies by name, but employers say it may be easy to figure out anyway.

OSHA believes there are multiple benefits to this new plan: “posting timely, establishment-specific injury and illness data will provide valuable information to employers, employees, employee representatives, and researchers.” Right now, employers can compare their performance to industry-wide statistics. But they cannot compare themselves to other companies in their industry. OSHA says access to establishment-specific data will help employers create more effective safety programs.

One provision really has employers up in arms

Some employers are unhappy about the new reporting procedures. But a lot more of them are upset about the rule’s anti-retaliation provision. In July, multiple entities filed a joint lawsuit against OSHA. They include:

• Associated Builders and Contractors, Inc.
• Great American Insurance Co.
• National Association of Manufacturers
• American Fuel and Petrochemical Manufacturers
• TEXO, a Texas chemical company
• Three companies that are clients of Great American Insurance Co. 

The lawsuit questions the validity of the rule’s anti-retaliation provisions. Specifically, it argues that:

• OSHA failed to properly notify the public about proposed rule changes. The 2013 notice did not include “retaliatory” safety programs or drug testing.
• OSHA introduced anti-retaliation language later. Officials thought more employers would try to discourage workers from reporting on-the-job injuries and illnesses. Companies would retaliate because their performance data will be made public.
• The new rule effectively prohibits all post-accident drug testing. Employers say this is necessary and valuable in certain situations. But the level of test required by the new rule does not exist.
• The rule does not promote OSHA’s stated goal – improving workplace safety.
• OSHA doesn’t even have legal authority to establish anti-retaliation provisions.

Greg Sizemore is vice president of health, safety, environment and workplace development for Associated Builders and Contractors. He says OSHA is trying to “restrict or eliminate programs that recognize workers for helping to establish a high-performance safety culture. OSHA says giving bonuses to workers with top safety records could be seen in a different light. Those who have been injured on the job are not eligible. So it might feel like punishment to them.

For example, a company might offer cash prizes to employees with perfect safety records. The amount of the prizes would increase in increments. Increases would be based on number of months without a lost-time accident.

Other employers agree with Sizemore. They say companies with incentive programs have fewer accidents. And less severe accidents. And that incentive programs save money. They fear the new OSHA rule would reverse all those benefits.

Why is OSHA concerned about employer retaliation?

Current OSHA regulations prohibit companies from discriminating against employees who report an injury, illness or fatality. But OSHA has limited enforcement power. If an employee feels retaliated against, they have to file a claim within 30 days. Under the new rule, employee claims are no longer required. OSHA can cite employers on their own for retaliation. They can also cite employers that discourage reporting of workplace injuries and illnesses. 

OSHA says, “This new authority is important because it gives OSHA the ability to protect workers who have been subject to retaliation, even when they cannot speak up for themselves.” They say the new rule will help them “encourage” employers to maintain accurate, complete records.

Potential Impact on Employers and Workplace Safety

Some employers say they are confused. They want safety incentive programs. OSHA wants them to have safety incentive programs. But which program provisions will OSHA approve? And which ones might be considered retaliatory? Fear of citations could keep employers from creating the most effective programs possible. 

Employers Should Be Proactive

“Don’t wait.” That’s the advice from legal and workers’ comp experts. The lawsuit may bring about some changes. But workplace safety managers should take steps now to ensure compliance. That way, quality programs will be in place no matter what happens. What can you do?

Review current workplace safety policies and procedures. Look for potential red flags, based on the new rule. Delete or revise any that need updating. Focus on creating positive approaches to safety. That starts with safe working techniques. But it includes encouraging workers to report injuries or illnesses. And it includes encouraging employees to suggest safety improvements. OSHA says company incentive programs “should encourage safe work practices and promote worker participation in safety-related activities.” Employers that do so likely won’t have to worry about citations.