OSHA Update: OSHA Announces Drastic New Recordkeeping and Retaliation Rule

By Pat Miller, Rod Smith, Chuck Newcom, and Matt Morrison

On May 11, 2016, OSHA announced the issuance of a final rule regarding recordkeeping. The new rule will require certain employers to electronically submit their injury and illness records to OSHA on an annual basis. Establishments with 250 or more employees that are required to keep injury and illness records will be required to electronically submit to OSHA their 300, 300A and 301 forms. Employers in certain industries (including, but not limited to, construction and manufacturing) whose establishments have between 20 and 249 employees will be required to electronically submit their 300A annual summary forms. The rule states that OSHA will be providing a secure website for the transmission of this information. Also, the rule allows for certain redactions to be made, such as employee names, addresses, and healthcare provider information.

The rule takes effect on January 1, 2017. Employers must submit their OSHA 300A annual summaries by July 1, 2017. The requirements for the submission of 300 logs and 301 reports do not take effect until 2018, with those forms being due on or before July 1, 2018. Beginning in 2019, the forms will be due by March 2 every year.

The new rule also contains provisions regarding “employee involvement” in recordkeeping and adds provisions related to retaliation. Employers will be required to inform each employee of their right to report injuries and illnesses and how to do so. Employers must also inform employees that they may not be retaliated against for such reporting. Procedures for reporting injuries must be “reasonable,” which OSHA defines as not deterring a reasonable employee from accurately reporting injuries and illnesses. The new rule also states that employers are prohibited from retaliating against employees for reporting injuries or illnesses. The effective date for the retaliation provisions of the standard is August 10, 2016.

Though further study of the rule will be necessary, we believe that it is flawed in many respects. Most glaringly, the new rule contains anti-retaliation provisions that already exist under Section 11(c) of the Occupational Safety and Health Act. Whereas the statute itself calls for employees to assert individual claims of retaliation, and provides a process for doing so, this new rule will allow OSHA to issue citations for practices that it believes are retaliatory even in the absence of any employee complaint. Moreover, citations issued under this new rule will authorize OSHA to order abatement of the retaliatory practice, which could include a revision of employer policies, reinstatement, and/or monetary relief for any employee believed to be retaliated against. Employers now will be faced with more than just the prospect of citations related to safety and health conditions. They could very well find themselves defending citations relating solely to their employment practices and seeking abatement that is akin to the sort of civil damages ordered in employment litigation cases. We believe that such issues are more properly left to the courts, not OSHA or the Occupational Safety and Health Review Commission.

The rule may be accessed here: https://www.osha.gov/recordkeeping/finalrule/index.html

Rod Smith, Pat Miller, Chuck Newcom and Matt Morrison are part of Sherman & Howard’s Labor & Employment Law Department. They routinely appear before the federal Occupational Safety and Health Review Commission, the federal Mine Safety and Health Review Commission, and state occupational safety and health boards.

Sherman & Howard L.L.C. has prepared this advisory to provide general information on recent legal developments that may be of interest. This advisory does not provide legal advice for any specific situation and does not create an attorney-client relationship between any reader and the Firm.

©2016 Sherman & Howard L.L.C.                                                                                             May 11, 2016