OSHA Nudges Employers to Prevent Workplace Injuries 9:07, May 23, 2017

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OSHA Nudges Employers to Prevent Workplace Injuries

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In May 2016 the US Occupational Safety and Health Administration (OSHA) enacted a final rule to improve tracking of workplace injuries and illnesses. The rule requires employers to electronically submit records of workplace injuries and illnesses. It also includes provisions that are meant to encourage employees to report such injuries and illnesses and that prohibit employers from retaliating for such reports.

Electronic Reporting of Workplace Injuries and Illnesses

New electronic reporting requirements will be phased in over the next two years. OSHA State Plan States must adopt requirements that are substantially similar to the OSHA requirements.

Employers are already required to collect and use workplace injury and illness data, but now it will be released in standard, open formats. According to OSHA’s Fact Sheet about the final rule, OSHA hopes that employers will increase their efforts to keep workers safe and that employers’ “competitive spirit” will compel them to “race to the top in terms of workplace safety.”

OSHA also states that:

In addition, behavioral science suggests that public disclosure of the data will “nudge” employers to reduce work-related injuries and illnesses in order to demonstrate to investors, job seekers, customers, and the broader public that their workplaces provide safe and healthy work environments for their employees. Currently, employers cannot compare their injury experience with other businesses in their industry; they can only compare their experience with their industry as a whole. Access to establishment-specific data will enable employers to benchmark their safety and health performance against industry leaders, encouraging them to improve their safety programs.

Privacy Concerns

OSHA will post establishment-specific workplace injury and illness data on its public website after removing personally identifiable information. Although there is some concern that OSHA’s web-based application for submitting forms may be hacked, OSHA said in its response to comments that access to data will improve the identification and abatement of workplace hazards and that publication of the data on its website would be consistent with President Obama’s Open Government Initiative.

Encouraging Workers to Report Workplace Injuries and Illnesses

As the Fact Sheet states, data reported by employers will be accurate only “if employees feel free to report injuries and illnesses without fear of retaliation.” Therefore, the final rule contains three provisions to encourage employee reporting:

  • Employers must inform employees of their right to report work-related injuries and illnesses free from retaliation. Employers can meet this obligation by posting an April 2015 or later version of OSHA’s “Job Safety and Health—It’s The Law” poster.
  • An employer’s procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting (the rule’s Summary says that the rule is clarifying an “existing implicit requirement”).
  • An employer may not retaliate against employees for reporting work-related injuries or illnesses.
    .

Although the electronic reporting provisions take effect January 1, 2017, the provisions about employee involvement in reporting take effect on December 1, 2016.  

Although the new rule doesn’t specifically refer to employee training, it does require employers to notify employees that they have the right to report workplace injuries or illness without retaliation. At a minimum, employers should post OSHA’s Job Safety and Health notice where employees can easily see it. In addition, employers should make sure that employee handbooks and safety policies specifically state that employees will not be retaliated against for reporting.

Further, because procedures for reporting work-related injuries and illness must be “reasonable” and must not deter or discourage employees from reporting, employers should ensure that their safety policies are straightforward and easily understood.

As OSHA discusses in its final rule, there are three types of policies that might deter a reasonable employee from reporting a work-related injury or illness:

Disciplinary policies: Employers cannot retaliate against an employee for reporting a work-related injury or illness. Employers can continue to discipline employees who violate legitimate safety rules, but they should proceed with caution when they take action against an employee who reports a workplace violation.

Post-accident drug testing policies: While drug testing of employees is important for a safe workplace, blanket post-injury drug testing policies can deter employees from reporting. OSHA determined that drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident.

Employee incentive programs: Employers may not offer incentive programs that deny a benefit to employees who report an injury or illness, such as programs that reward employees for being “injury free.” But employers may offer incentive programs that reward employees for participating in safety-related activities.

While incentive structures can help workplaces stay safe, they can also cause problems if the allure of compensation creates a conflict of interest, such as if an employer offers prizes for a workplace where no one has reported an injury.  

In 2012, OSHA issued a memorandum on Employer Safety Incentive and Disincentive Practices that describes the kind of incentive programs that may result in an OSHA investigation.

OSHA Penalties

As we noted in July 2016, OSHA penalties increased by 78% as part of 2015 legislation that allowed federal agencies to adjust their penalties for inflation. So it’s more important than ever not to run afoul of OSHA’s rules.

Update: The DOL has suspended this rule in order to address employers’ concerns about meeting their recordkeeping obligations. OSHA plans to post updates on its website.

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Christine Day
Christine Day is a legal editor at EverFi. She writes about employment law issues and tracks case law and legislative and regulatory updates. Before joining EverFi she worked in legal publishing, researching and writing about tax law, business law, and employment law. She earned her JD from the University of San Diego Law School and her BA from the University of Southern California.

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