Effective January 1, 2015, two new rules will go into effect by the U.S. Department of Labor – Occupational Safety and Health Administration (OSHA) that will impact most all employers. One rule relates to recordkeeping and the other rule relates to reporting injuries to OSHA. Meanwhile, another rule is likely to go into effect that will force employers to change how they treat employees who experience on-the-job injuries and illnesses.
I. Recordkeeping Changes:
Under OSHA regulations “recordkeeping” is the act of completing the employer’s injury and illness log (e.g., OSHA 300, 300A, and/or 301). The current rules require employers with more than ten employees1 to maintain written paper records and post those records from February 1, through April 30 each year. However, effective January 1, 2015, the recordkeeping rules will change in three ways:
- Records will be maintained and submitted to OSHA electronically.
- Records will be available to the public via the internet.
- Employers required to maintain records will change from employers with Standard Industrial Classification (SIC) that have a DART (Days Away, Restriction, or Transfer rate) greater than 2.325 to employers with NAICS codes that have a DART of greater than 1.5.
While the electronic submission of records will be new, the change in classification of exempt employer-types will now require millions of previously exempted employers to engage in recordkeeping.
II. Reporting Changes:
Under OSHA regulations “reporting” is the act of notifying OSHA that an injury, illness, or death has taken place. Currently, OSHA requires employers to report when an employee dies of an occupational injury or illness and/or when three or more employees are hospitalized as a result of a single event. However, under the new rules that will take effect on January 1, 2015:
- Employers still must report within 8 hours the death of an employee (subject to certain limited exceptions).
- Employers must report the hospitalization for more than observation of 1 or more employees within 24 hours, if the hospitalization occurs within 24 hours of the incident leading to the hospitalization (subject to certain limited exceptions).
- Employers must report amputations or eye losses within 24 hours if the amputation or eye loss occurs within 24 hours of the incident.
Obviously, the new rules will capture many more incidents than the current rules and will allow OSHA to target inspections to employers with incidents. However, it is unlikely that the overall number of inspection will increase dramatically unless there is a dramatic increase in OSHA’s budget. Further, the new recordkeeping and reporting rules will allow OSHA to electronically cross-check employers on the accuracy of their recordkeeping.
III. Expanded Whistleblower Coverage for Employees:
OSHA previously proposed, in conjunction with the electronic recordkeeping rules that employers with more than 250 employees be required to submit workplace injury and illness records on a quarterly basis. OSHA reopened the comment period (which is now closed) on that rule and included what amounts to a new definition of whistleblower under the OSH Act. If OSHA implements this rule on March 1, 2015, as seems likely, employers will have to change the way they handle employees who report workplace injury and illnesses. Under the new rules, employers will no longer be able to do the following:
- Mandate drug testing every time an employee reports an injury (unless there is a reason to suspect drug use).
- Demand that employees report illnesses and injuries within a certain time after being injured or becoming ill.
- Require employees report injuries and illnesses in-person to someone at a distant location.
- Terminate employees who are injured because they failed to abide by the employer’s safety rules.
- Discipline employees who report injuries or illnesses or terminating employees who have more than X injuries.
- Enforce vague safety rules like “situational awareness” and “work carefully” only after an employee is injured.
- Continue with “Repeat Offender” programs.
Employers who continue with policies and programs that incorporate the above referenced activities will potentially subject themselves to whistleblower violations.
1Small employers often mis-count their employees and fail to count each employee that worked for them during the preceding twelve months. Each employee who works any amount during the preceding twelve months goes against the ten employees.