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New OSHA Electronic Reporting Puts a Target on Employers’ Backs

June 6, 2016
"Regulations by shaming" has become OSHA's standard way of dealing with employers under the Obama Administration.

Once again the Obama Administration has twisted the purpose of a federal regulatory program with the clear intention of helping its union allies.

The Occupational Safety and Health Administration (OSHA) requirement that employers file injury and illness reports regularly was originally intended to provide the agency with useful statistical information to guide its activities. Recently issued rules require those reports be filed electronically and made public on the Internet with the declared purpose of embarrassing employers, while at the same time giving targeting data to unions and tort lawyers.

Starting August 10, companies in industries covered by the recordkeeping regulation employing 250 or more workers must electronically submit OSHA injury and illness Forms 300, 300A and 301.

Firms with 20-249 employees in certain industries need only submit OSHA Form 300A. These include agriculture, construction, utilities and retail, as well as warehousing and storage, couriers and express delivery services, local messengers and local delivery, general freight and specialized freight trucking, and support activities for road, air, rail and water transportation.

The rule also expands the number of companies who have to file these kinds of reports from about 80,000 currently to 478,000 employers.

The agency makes no secret of its intent. “Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace,” declares David Michaels, OSHA’s top official. “Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers and the public that they operate safe and well-managed facilities.”

Using the injury data to help OSHA improve setting compliance assistance and enforcement resource priorities was mentioned by Michaels only after he had made the previous statement regarding his agency’s public shaming of employers.

Commenting during the rule proposal period, Michael Belcher, president of the American Society of Safety Engineers, told OSHA that injury and illness rates “were never intended to be used as a performance measurement, but that’s exactly what’s going to happen if they are published. The rule’s emphasis on data collected after injuries and fatalities occur is a step backward for safety professionals who work hard to move organizations toward measuring leading indicators, which better indicate how to avoid injuries and illnesses.”

Attorney Howard Mavity of the law firm of Fisher & Phillips, adds, “This ‘regulation by shame’ strategy will continue to focus employer efforts on the lagging indicators of workplace injuries instead of incentivizing the leading indicator activities that actually prevent injuries.”

Drug Testing Is Retaliation

As of August 10 employers also are required to establish procedures for workers to report illnesses and injuries—which include creating standards to prevent retaliation against those employees filing the reports.

Employers must make sure employees are aware of their right to report work-related injuries without fear of retaliation, an obligation that employers can meet by posting the agency’s poster: “OSHA Job Safety and Health—It’s The Law,” which can be found on its website.

Negotiating the minefield you need to cross to create the required reporting policy turns out to be a delicate balancing act for employers. U.S. Steel was sued earlier this year by the Department of Labor (OSHA’s parent agency) for requiring employees to “immediately report” all injuries. The government said such an “immediate reporting policy” potentially discourages employees from reporting workplace injuries later.

The new anti-retaliation strictures also are seen as discouraging post-accident drug and alcohol testing, which OSHA believes can deter injury reporting. On the other hand, OSHA says testing conducted in compliance with federal or state laws will not be considered violations. As a result, employers who are required to conduct post-accident testing under Department of Transportation rules, like truck fleet operators, can continue to do so.

OSHA seems to believe that only post-accident testing will not be subject to enforcement action under the new rule exists in situations where drug use likely contributed to the accident and which accurately tests for impairment.

If OSHA believes an employer’s drug testing policy deters injury reporting, the penalties can be quite steep, warns the law firm of Littler Mendelson. Those penalties will increase substantially in August when they rise to as much as $12,471 per violation and as much as $124,712 if OSHA finds the employer violations are “willful.”

In fact, the new electronic reporting rule is intended to support expansion of OSHA’s findings of willful violations, according to attorneys at the Ogletree Deakins law firm.

“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,” the attorneys note. “Given the current press release-driven, ‘regulation-by-shaming’ enforcement environment, OSHA is likely to use the data in that manner.”

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