Employment Law Update

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OSHA Rule Imposes New Injury Reporting Procedures and Seeks to Restrict Common Drug Testing and Safety Programs

On May 12, 2016, the United States Occupational Safety and Health Administration ("OSHA") released a final rule that imposes new employer injury and illness reporting requirements and mandates that certain employers electronically report injury and illness data to OSHA for publication online. Some of these requirements become effective in just a few months, requiring prompt action by employers.

The first component of OSHA's new rule, which has been criticized as overbroad, is designed to tighten employer injury and illness reporting procedures and restrict certain employer programs that may discourage employee reporting workplace injuries or illnesses. The rule requires that employers develop and inform employees of "reasonable" procedures for employees to self-report workplace injuries and illnesses, including informing employees that they have a right to report injuries and illnesses without risk of retaliation. According to the rule, a procedure is not reasonable if it would discourage employees from reporting injuries or illnesses.
Many have criticized OSHA's "reasonableness" rule as unduly impacting otherwise legitimate programs. For instance, OSHA has indicated workplace safety incentive programs and mandatory post-accident drug testing programs may violate this rule by discouraging employee reporting. However, there is no bright line for when an employer program violates the rule. Therefore, employers should carefully review current and contemplated programs in light of the new rule. The effective date for the "reasonableness" rule is August 10, 2016.

The second component of OSHA's new rule is designed to "nudge" employers to improve workplace safety. Specifically, the rule requires certain covered employers to electronically submit injury and illness data to the agency. OSHA will use this data to create a publicly available data set on its website, in part to publicly "shame" employers to improve worker safety. OSHA has compared this to public cleanliness reports for restaurants in certain jurisdictions. In addition to resulting in additional scrutiny of employers by OSHA, this data may be used by plaintiffs' attorneys, labor organizations and competitors. Accordingly, employers should evaluate their current recordkeeping practices.

The electronic reporting requirement applies to companies with 250 or more employees (including seasonal, temporary, and part-time), as well as companies with 20-249 employees in certain covered industries (agriculture, forestry, construction, manufacturing, etc). OSHA will use standard reporting forms, which differ based on type of employer. Data for 2016 and 2017 is due by July 1, 2017 and 2018, respectively. Data for 2018 and subsequent years will be due by March 2nd of the following year.

The U.S. Chamber of Commerce and other business groups have stated that there is a "strong chance" that legal challenges will be filed against the new rule.

If you have questions about compliance with these new OSHA requirements, please contact.

David Beugelmans

Bob Kellner

Chuck Bacharach