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OSHA’s New E-Recordkeeping and Anti-Retaliation Rule in Effect

Kate McMahon, Eric Conn, Dan Deacon
Click here to see this story as it appears in March 2017 Modern Casting.

Notwithstanding the lawsuit filed by industry plaintiffs challenging the controversial anti-retaliation provisions of OSHA’s new rule, the entirety of OSHA’s new electronic injury and illness recordkeeping rule has gone into effect, including the requirement for thousands of employers—for the first time ever—to submit their injury data to OSHA in July of this year.

While the Trump Administration in conjunction with the Republican Congress may eventually repeal all or portions of the rule, as of now, the rule is the law, and employers who are not in compliance are subject to enforcement.  Accordingly, metalcasters must make sure their OSHA logs are being completed accurately and, further, evaluate their safety incentive programs, drug testing policies, management compensation and bonus schemes, and injury reporting policies to determine whether they comport with the new rule. 

Below is a summary of the key components of the new rule. 

Electronic Injury and Illness Recordkeeping Data Submission
The following is a list of what companies must do to comply with recordkeeping regulations:

All establishments with 250 or more employees must submit to OSHA annually their OSHA 300 Logs of work related injuries and illnesses, 301 Incident Reports, and 300A Annual Summaries.

Establishments with 20-249 employees in certain “high hazard industries”—including the metalcasting industry—must annually submit their 300A Annual Summary data only.

The submissions to OSHA must be made electronically via a secure website that has not yet been released by the Agency but, presumably, will be available before this summer when the first data submissions must be made.

Note the data submission requirements are not corporate-wide. Rather, they are tied to individual “establishments,” which is defined as “a single physical location where business is conducted or where services or industrial operations are performed.”

Accordingly, the rule requires a location-by-location determination about whether and what to report, and this analysis is based on the number of employees (peak employment at any point during the year, including temporary and part time employees) at each particular location.

Although the full impact of the rule is being phased in over three years, by July 1 covered employers are required to submit their 300A forms.  Then, by July 1, 2018, covered employers will need to submit all the required information (Forms 300, 301, and 300A).  Finally, in the third year, all the information must be submitted earlier in the year—by March 1, 2019.

When the rule was promulgated under the Obama Administration, OSHA’s plans had been to make the injury and illness data received pursuant to this rule publicly available—for a company’s customers, insurers, competitors, local community, and potential union organizers, etc. to view.  OSHA’s theory was that putting injury/illness data in the public’s hands would result in natural pressure to reduce injury and illness rates. 

However, clear signs indicate the Trump transition team will take a different view of making employer injury/illness data public.  Just days after the Inauguration, the OSHA website took down its controversial plans to reveal this data to the public.

Notwithstanding, and even if the Trump team determines the data will not be made public, this decision would not negate employers’ obligation to submit their log data to OSHA beginning this summer. 

Reasonable Reporting Procedures
In addition to the electronic submission of injury and illness data requirement, the rule also includes a set of controversial provisions potentially significantly impacting a plethora of employee safety policies.  First, the new rule states all employee injury reporting policies must be “reasonable,” and, therefore, must not “deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.”

Because this language is so broad and vague, the policies and conduct required or prohibited is not clear. The rule does not define reasonableness, and OSHA did not explain in the preamble to the rule what constitutes a reasonable reporting policy.  The preamble did, however, make clear a policy that either requires “immediate” reporting of an injury or creates an “undue burden” on employees to complete a report violates this new requirement.

OSHA issued a Guidance Memorandum on October 19, 2016, that provided some clarification as to what it intends by “reasonable” injury reporting procedures.  OSHA states employers may implement policies that require employees to report a work-related injury or illness “as soon as practicable after realizing they have the kind of injury or illness they are required to report,” such as the next business day, when possible.  However, it is not reasonable to discipline employees for failing to report an injury before they realize they have a (reportable) work-related injury or illness, or when they are incapacitated.  Ultimately, the key inquiry is whether the employer’s policy provides some amount of time to report after the employee has realized he or she suffered a reportable work-related injury or illness.

Discipline and Retaliation for Reporting Injuries
The new rule also added a provision to prohibit retaliation against an employee for reporting a work-related injury or illness—a prohibition already explicit in Section 11(c) of the OSH Act.  While neither the preamble nor the regulatory text offered any clear sense of precisely what type of polices would be considered “retaliatory,” OSHA did restate a position it has held for years, which is that employee discipline for violating workplace safety rules is not categorically prohibited.

Notwithstanding, OSHA raises serious concerns about vague rules that require discipline for general practices, such as “not working safely,” indicating these policies will be scrutinized closely.  The central inquiry will be whether the employer treats other employees who violated the same safety rule in the same way—i.e. disciplines them—even if those employees did not report a work-related injury or illness. 

As for disciplining an employee for violating an injury reporting deadline, OSHA’s Guidance states the agency will use several factors to evaluate whether a legitimate business reason for discipline exists, or whether the time limit exists simply to discourage employees from reporting or otherwise serves as pretext to discipline an employee for reporting an injury or illness, including:

•    Reasonableness of the reporting deadline.
•    Whether the employee had a reasonable explanation for missing the deadline.
•    Whether the employer has a substantial interest in enforcing the rule.
•    Whether the discipline appears proportional to the employer’s interest in the rule.

To steer clear of a citation from OSHA, employers should ensure disciplinary action is doled out consistently (i.e., violations of safety rules are enforced even absent an injury) and is imposed for a legitimate reason, such as the need to promptly investigate incidents.

Post-Accident Drug Testing
While the new regulatory text does not explicitly mention drug testing policies, the preamble and OSHA’s Guidance memo call into serious question an employers’ right to conduct post-accident drug testing.  OSHA stated in the preamble to the rule that “blanket post-injury drug testing policies deter proper reporting.”

The rule, however, does not ban drug testing.  First, it certainly allows drug testing is required under other federal or state laws or by workers’ compensation programs. OSHA’s guidance also provides:

“(T)he general principle here is that drug testing may not be used by the employer as a form of discipline against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances.”

Per OSHA, the rule is tailored to prohibit only “drug testing for reporting work-related injuries or illnesses without an objectively reasonable basis for doing so.”  In evaluating whether an employer has an “objectively reasonable basis” for post-injury drug testing, the central inquiry is whether the employer had a reasonable basis for believing drug use by the reporting employee could have contributed to the injury.  Ultimately, an employer’s drug testing policy must be used only to evaluate the root causes of workplace injury and illness and cannot be used as a form of discipline or to deter employees from reporting injuries.

Safety Incentive Programs
For the last several years, OSHA has expressed concern about the purported chilling effect of certain types of safety incentive programs. While recognizing that some programs are helpful in creating positive safety culture, OSHA explained “if . . . the programs are not structured carefully, they have the potential to discourage reporting of work-related injuries and illnesses without improving workplace safety.”

OSHA’s concern is specifically directed at incentive programs that reward the absence of injury or withhold rewards from an individual or group because someone reports an injury or does not achieve a certain injury metric. The key is whether the gift or benefit to the employee (whether it be a gift card, a monetary bonus, or a raffle for a prize, etc.) is based on leading factors (such as complying with a safety rule) or lagging factors (injury rates).  Lagging indicator programs will be highly suspect and likely impermissible under OSHA’s new rule.

Will OSHA’s New Rule Survive?
While rumors certainly abound that the Trump Administration will eventually peel back this rule—or simply not enforce it—such action may not be imminent.  Similarly, while industry plaintiffs have sued OSHA over the anti-retaliation provisions of the rule in federal court, the outcome of that litigation could be many months or even years away.  Thus, until either the Trump Administration eviscerates the rule or industry plaintiffs prevail in court, metalcasters with 20 or more employees should begin auditing their recordkeeping forms and analyze their existing reporting, drug testing, and safety incentive programs to ensure they comply with OSHA’s new rule.  

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