OSHA's New Electronic Reporting Rule

Author: Gloria Ju

An Occupational Safety and Health Administration (OSHA) final rule requires certain employers to electronically submit to OSHA the injury and illness data recorded on OSHA Forms 300, 300A and 301. OSHA plans to make this data public on its website in an effort to motivate employers to focus on workplace safety.

The rule also increases employee protections against retaliation for reporting workplace injuries and illnesses in order to promote complete and accurate reporting. Under the final rule, OSHA may cite an employer for retaliation even if an employee did not file a complaint.

While injury and illness data submissions begin July 1, 2017, the anti-retaliation provisions are enforced beginning November 1, 2016. An employer should consider taking the following steps to ensure compliance with all aspects of the final rule.

1. Determine If and When to Report Injury and Illness Data to OSHA

Employers with 250 or more employees that are subject to OSHA's recordkeeping requirements must begin submitting data from:

  • Form 300A by July 1, 2017;
  • Form 300A, Form 300 and Form 301 by July 1, 2018; and
  • Forms 300A, 300 and 301 by March 2 in 2019 and subsequent years.

Employers with 20-249 employees in certain high-risk industries must begin submitting data from Form 300A by:

  • July 1 in 2017 and 2018; and
  • March 2 in 2019 and subsequent years.

Other employers not covered by these annual reporting requirements must submit injury and illness data upon receiving written notification from OSHA or an OSHA designee.

2. Notify Employees of Their Rights

The final rule requires an employer to inform employees of their right to report work-related injuries and illnesses free from employer retaliation. An employer also must be able to provide proof that the employees received this information. An employer may fulfill this requirement by posting OSHA's Job Safety and Health: It's the Law poster.

3. Review Injury and Illness Reporting Procedures

The anti-retaliation provisions of the final rule require that an employer have a reasonable procedure for employees to report injuries and illnesses. An employer should check its policies and procedures to ensure they do not discourage or deter employees from reporting. For example, an injury-reporting policy that requires an employee to report an injury or illness "immediately" may not be reasonable if an employee is not aware of the injury or illness at first. A policy that requires reporting as soon as an injury or illness is reasonably known or recognized by the employee is more likely to pass OSHA scrutiny.

4. Review Drug-Testing Policies

OSHA believes that blanket post-injury drug-testing policies deter proper reporting. The final rule prohibits an employer from using drug testing (or the threat of drug testing) as a form of adverse action against employees who report injuries or illnesses. However, it does not completely ban employee drug testing, and it provides a safe harbor if drug testing is required under state or federal law. An employer generally should limit post-injury drug testing to situations in which employee drug use likely contributed to an incident. For example, it would not be reasonable to drug test an employee who reports a bee sting or who has a repetitive motion injury.

5. Review Safety Incentive Programs

As with post-injury drug testing, the final rule does not prohibit safety incentive programs. However, OSHA warns that a program that rewards employees who do not report an injury or illness may result in under-reporting (because an employee may not report an injury because he or she wants to collect the reward) or may be considered retaliatory (because an employee misses out on a reward after he or she reports an injury). Instead, an incentive program should encourage safe work practices and promote employee participation in safety-related activities.