New Regulations Aiming to Give OSHA Anti-retaliation Authority will be Phased in Over Several Years

Posted by Charles Middleton on 06/01/2016

Q: New OSHA regulations will impact the content of employer OSHA policies and create electronic reporting requirement changes. What are the details of the new changes?

A: New anti-retaliation provisions effective Aug. 10 purport to give the Occupational Safety and Health Administration new authority to issue citations based on alleged retaliation, require employers to notify employees of OSHA complaint procedures and anti-retaliation provisions, and allow OSHA to evaluate and issue citations for safety incentive programs, post-incident drug testing practices (or other employer programs/practices) that OSHA believes discourage employee reporting or workplace injuries or illnesses. The new electronic reporting obligations will be phased in over three years starting in 2017 and will require covered establishments to adopt an electronic record-keeping system or to transfer the information in their paper records to submit the information electronically. This data will then be made public on OSHA's website. OSHA indicates that it does not intend to post any information that could be used to identify individual employees on its website.

 

Q: What employers will be most affected?

A: The new anti-retaliation provisions apply to all employers. The new electronic reporting rule will primarily impact two types of establishments: those with 250 or more employees that are currently required to maintain OSHA injury and illness records, those with 20 to 249 employees that are classified in 67 specific industries which have historically high rates of occupational injury and illness. Such industries include construction, manufacturing, grocery stores, nursing care facilities, psychiatric and substance abuse hospitals, ambulatory health care services, and many others. The new rule will also allow OSHA to collect information electronically from establishments which are not otherwise required to submit information to the agency upon written notice from OSHA.

 

Q: How can employers prepare for the change?

A: All employers should review their OSHA policies to make sure they have a policy clearly advising employees of the procedure for reporting work-related injuries and illnesses that does not discourage employees from making these reports. Policies should also specifically state the prohibition on retaliation. OSHA takes the position that a requirement that employees report an injury or illness in less than seven days, certain safety incentive programs, and some post-incident drug testing (where there is not a reasonable link between the incident and potential drug use, such as repetitive stress injuries, injuries caused by a tool malfunction, or the like) have the effect of discouraging reporting. Employers are encouraged to review these policies and consider necessary revisions. Employers with 250 or more employees will need to submit summaries of their illness and injury data electronically in July 2017. OSHA indicates it will provide a secure website for this purpose.

PAULA BURKES, BUSINESS WRITER

Published The Oklahoman, June 1, 2016