OSHA’s New Electronic Recordkeeping Rule – Transparency or Turmoil?01 August 2016
OSHA’s Electronic Recordkeeping Final Rule goes into effect January 1, 2017, amid much controversy and consternation. This rule requires workplace injuries and illnesses to be reported electronically to OSHA, rather than just posted on the current 300, 300A and 301 forms. This information will be available on the OSHA website.
By making this information public, OSHA hopes to cause employers to work harder in preventing worker injuries and illnesses and also to foster competition among companies, in order that they might strive to become the safest. In addition, this provides researchers with a slew of meaningful data.
Since OSHA did not have direct access to company-specific injury and illness data before, they proposed this rule in an effort to improve data collection.
If a company was already required to keep this data under existing OSHA regulations, this final rule requires employers to electronically submit the information.
Data submission forms:
- OSHA form 300, Log of Work-Related Injuries and Illnesses
- OSHA form 300A, Summary of Work-Related Injuries and Illnesses
- OSHA form 301, Injury and Illness Incident Report
Will be phased in as follows:
|Submission Year||Establishments with
250 or More
|Establishments with 20-249 or
More Employees in Certain
|2017||Form 300A||Form 300A||July 1, 2017|
|2018||Form 300A, 300, 301||Form 300A||July 1, 2017|
Starting in 2019, the submission date will be changed from July 1 to March 2.
Establishments with fewer than 20 employees at all times during the year do not have to routinely submit information electronically, but rather only upon direct request.
Electronic reporting is based on the size of the establishment, not the firm. An establishment is defined as a single, physical location, where business is conducted or where services or industrial operations are performed. A firm may be comprised of one or more establishments. The size of an establishment is determined by its peak employment during the calendar year, considering every full-time, part-time, seasonal, and temporary worker employed by establishment.
Electronic data submission requirements do not relieve an employer of their obligation to complete and retain this data.
The anti-retaliation segment of this law goes into effect August 10, 2016. Employers must develop and train employees on the following:
- Employers must inform employees of their right to report work-related injuries and illnesses, free from retaliation.
- Employers must establish reporting procedures that do not deter reporting.
- Employers must not retaliate against employees for reporting workplace incidents.
The anti-retaliatory provisions ensure that all accidents are reported, so that data is complete and accurate.
Incentive programs and post-accident drug testing are two items that may deter injury/illness reporting according to OSHA.
Post-incident drug testing can be considered a retaliatory measure used by a company to keep employees from reporting incident.
To prevent drug testing from being considered retaliatory, OSHA maintains that drug testing policies should “limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use”. Post-incident drug testing after a bee sting or an injury due to lack of machine guarding may be considered retaliatory.
However, employers required to test under state or federal laws, such as the U.S. Department of Transportation Regulations, may continue to do so, because testing in those circumstances is not retaliatory.
Some incentive programs unintentionally or intentionally provide employees an incentive to not report injuries. For example, an employer might enter all employees not injured in the previous year in a drawing to win a prize, or a team of employees might be awarded a bonus if no one from the team is injured over some period of time. Such programs might be well-intentioned, however, OSHA looks at this as a discouragement to reporting. My rule of thumb is: if a dead person could win the safety incentive prize by doing nothing (not reporting an injury), it’s a problem. Incentive programs should be based on action items like worker participation in safety-related activities—for instance, identifying hazards, attending training, or providing safety suggestions.
So, why the pushback?
There is concern that this data may be used by competitors. Some data of interest may be: date and location-specific accident information, average number of employees a company has, and the annual total hours worked by all employees in a company.
The paper forms are “living” documents and may be changed. For example, let’s say an employee has a heart attack at work, and no immediate cause has been determined. In the meantime, electronic data is submitted, showing only that the worker died at work. How can a company correct the posted reports if it is concluded that the heart attack was not work-related? More importantly, how do they change public opinion? Remember: once on the internet, always on the internet.
Employee groups are concerned that employee-specific details will inadvertently be published. Employee specifics will not be made public and safeguards are in place, according to OSHA. However, how often do you hear that sensitive consumer information has been hacked or that a company had a “cyber-intrusion”? This is just more information to be hacked and made public.
What to do now:
- Companies should review their drug policies. Do your current post-accident drug procedures meet the new guidelines?
- What are your company’s procedures for reporting accidents? Ensure employees and supervisors know that no retaliatory actions will be taken against employees, reporting an incident. Remind supervisors that they must complete an accident form, once it is reported.
- Review your safety incentive program. Can it be won by a dead person?
- Be familiar with the forms 300, 300A and 301 (available on the OSHA website www.osha.gov)–especially 301. The 301 is the accident report. Compare your company accident form to the 301 form and make certain that you have all the required information.
- Train employees ASAP on your accident-reporting policy, emphasizing that there is an anti- retaliation policy for reporting an incident. Even though this is effective, starting in August, OSHA will not begin citing until November.
Will electronic accident reporting reduce accidents like OSHA claims or a boondoggle that does more harm than good?
Emily Childers, author for Next Level Web.
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