In an effort to improve tracking and prevent workplace injuries and illnesses, the Occupational Safety and Health Administration (OSHA) is modernizing its system for collecting injury data.
The new OSHA rules, issued on May 11, 2016, are intended to help protect the safety of American employees. According to OSHA, the provisions make it easier to identify, inspect and target hazards at specific companies.
In addition to the increased reporting burden on employers, OSHA is also adding a public disclosure clause, which will allow for greater scrutiny of safety records by potential employees, investors, partners, competitors and the public at large.
How can your business prepare for the changes? Read on to find out more about the new OSHA rules and what steps you need to take.
Since 1971, under OSHA’s 29 CFR 1904 record-keeping standard, companies that are non-exempt industries have been obligated to keep logs of workplace injuries and illnesses with the forms completed depending on the size of the company.
The new reporting requirements don’t change the basic requirement of who keeps records. However, with the new requirement, certain employers will now also submit recordable injuries and illnesses electronically. OSHA has not yet specified how forms will be submitted specifically, but it will likely be through an online system or email.
However, this filing shouldn’t be taken lightly. The fine for misreporting will increase from $7,000 per offense to more than $12,000 per offense beginning November 1, 2016.
Another major change will come in the form of increased transparency. After collecting this data, OSHA will remove any personally identifiable information in compliance with HIPAA and ADA, and make these records available to the public. According to OSHA, public disclosure will incentivize companies to improve potential injury and illness-causing conditions. Additionally, it will allow a business to compare its illness and injury rates to others within its industry.
How it applies
The new OSHA rule applies to your company based on a number of factors, including industry, number of employees and worksite locations.
Not all industries will be affected. Many white collar businesses, like accounting and tax preparation companies, for example, are exempt from the new regulation. Visit the OSHA website to see if your industrial classification code falls into an exempt category.
– Number of employees
Requirements for reporting vary based on the number of employees you have.
Companies with fewer than 10 employees are not required to keep injury and illness logs, unless specifically requested from OSHA or the Bureau of Labor and Statistics (BLS).
Companies with 11-19 employees do not have to report at this time.
Companies in non-exempt, high risk industries that have 20-249 employees will be obligated to electronically file information from OSHA Form 300A.
Meanwhile, non-exempt businesses with more than 250 employees must now electronically file information from all three forms, including Form 300A, Form 300 and Form 301.
The new OSHA rule also sets a regulatory floor for state compliance. Meaning, if your state has its own safety requirements, by February 10, 2017 (six months from the new rule’s effective date), it must adhere to standards that are at least as effective as the federal law.
States will be able to use either the federal OSHA data collection website or design their own that complies with the federal requirements. More information and guidance on this matter will be provided by OSHA upon implementation of the new rule.
The new reporting requirements will be phased in over two years. According to OSHA:
- Nonexempt establishments with 250 or more employees must submit information from their 2016 Form 300A by July 1, 2017. These same employers will be required to submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.
- Nonexempt establishments with 20-249 employees must submit information from their 2016 Form 300A by July 1, 2017, and their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.
- OSHA state plan states must adopt requirements that are substantially identical to the requirements in this final rule within six months after publication of this final rule.
How to prepare
1. If you’re not already maintaining your OSHA records as required, specifically Forms 300A, Form 300 and Form 301, get access to these forms and instructions at OSHA.gov.
2. When injuries do occur, decide whether they are recordable using the decision tree provided by OSHA.
For example, looking at the decision tree, if your employee became too hot and lost consciousness from heat exhaustion while on the job, this injury would need to be recorded. It falls under the general recording criterion of loss of consciousness.
However, if that same employee had suffered a small cut on his hand, which only required on-site first aid, no recording would be required. Even though it was a new injury that occurred while at work, it does not fall under the severity dictated under the general recording criteria.
3. Submit your first report. As mentioned previously, OSHA hasn’t announced the method for submission, but it will most likely be through their website or via email.
4. Train your staff. At least one on-site employee should understand how to use the log and new submission tool.
Disciplinary policies and retaliation
While OSHA already prohibits retaliation against an employee who reports an injury, OSHA may now cite an employer for retaliation without the aid of an employee complaint. According to OSHA, this will help prevent employers from discouraging employees from reporting hazardous conditions.
As always, employers cannot punish employees for reporting or having an injury. Retaliation of any kind is not allowed, including actions that function in a retaliatory manner, such as isolating or demoting employees.
For example, say your employee strains her back and attempts to continue working without reporting, but after a month, realizes she needs to report the injury because it’s affecting her ability to do her job. You could not terminate her because she didn’t report the injuries within 24 hours.
It’s also a requirement under the new rule that employees be made aware of the non-retaliation policy. Among other ways, an easy way to satisfy this requirement is to prominently display an OSHA poster in an employee breakroom or high-traffic area.
Safety incentive programs
As with the previous regulatory framework, some employee safety incentive programs are acceptable under the new OSHA rules. However, your incentive program cannot incite underreporting of injuries or illnesses, which would impair accurate recordkeeping.
For example, an incentive program with prizes structured only around maintaining a low number of worksite injuries violates the new rule. While well-intentioned, such a program could discourage employees from reporting injuries in the workplace.
On the contrary, giving a gift card to employees who start a volunteer safety committee is an acceptable form of a safety incentive program.
In general, any incentives should not intimidate or discourage employees from reporting illness or injury.
Post-accident drug tests
Under the new rule, post-accident drug testing of employees becomes prohibited if it seems unlikely that the injury resulted from recent drug use. Like with the safety incentive programs, drug testing in an inappropriate situation could be considered intimidation, which can impede accurate recordkeeping and cause OSHA to issue a citation for retaliation.
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