Currently employers must report work-related injuries or illnesses and maintain a log of these occurrences for review by the Occupational Safety and Health Administration (OSHA). The log must be available upon request during an OSHA inspection. However, newly finalized regulations mandate that certain employers submit reports electronically, on an annual basis. Some of the data will be posted on OSHA’s website, because, the agency says, “behavioral economics tells us that making injury information publicly available will ‘nudge’ employers to focus on safety.”
The new reporting requirement takes effect in 2017. It’s applicable to all employers with at least 250 employees and to employers with at least 20 workers in 66 industry categories deemed to be hazardous. Roughly 80,000 employers fall within that category.
OSHA’s roster of hazardous industries includes many that one would expect, such as manufacturing, agriculture, forestry and fishing, as well as some that would appear less hazardous to employee health, for example, home furnishing stores, specialty food stores and museums.
In addition to the expanded reporting requirements, a provision of the new regulations that takes effect August 10, 2016, features “anti-retaliation protections.” These rules:
- Require you to inform employees of their right to report work-related injuries and illnesses “free from retaliation,”
- Clarify the existing implicit requirement that your procedure for reporting work-related injuries and illnesses be reasonable and not “deter or discourage” employees from reporting, and
- Incorporate the current law’s prohibition on retaliating against employees for reporting work-related injuries or illnesses.
The regulations allow for punishment of employers deemed to have retaliated against employees for reporting injuries, even if the injured employees failed to file a complaint within 30 days, as previously required. Some business organizations, including the U.S. Chamber of Commerce, have indicated they might challenge that provision in court, however, arguing that it goes beyond what’s authorized by law.
Employers will need to tread carefully with generous workplace safety incentives to ensure that they could not be viewed as illegally discouraging employees from reporting on-the-job injuries.
Drug Testing Concern
Similarly, if you require employees to undergo drug testing following an accident, be sure the policy is clearly spelled out and consistently administered, to limit the chances that it would be deemed as an illegal deterrent to employees reporting injuries.
Recordkeeping of serious injuries and illnesses is done by filing forms 300, 300A and 301. The deadline for covered employers to electronically file their forms 300A (a summary document) for 2016 is July 1, 2017. Employers in the 250-plus employee category will be required by July 1 of 2018 to file all 2017 forms — 300A, 300 and 301. The smaller employers in high-risk industries will still only file the 300A at that time. In 2019, the deadline for filing 2018 reports advances to March 2.
Given the prospect of public disclosure of injury and illness reports, employers may decide to review OSHA’s criteria for what must be reported. The reporting regulations fall under 29 Code of Federal Regulations 1904.
According to the regulations, “You must consider an injury or illness to be work-related if an event or exposure in the work environment either caused or contributed to the resulting condition or significantly aggravated a pre-existing injury or illness. … Work-relatedness is presumed for injuries and illnesses resulting from events or exposures occurring in the work environment, unless covered by an exception in [the regulations].”
But how serious must a medical problem be in order to be reportable? In general, a recordable injury or illness under OSHA is one that requires medical treatment beyond first aid or that results in days away from work, restricted work or transfer to another job, or loss of consciousness. Regardless of those stipulations, if a physician or other licensed health care professional deems the work-related condition as a significant injury or illness, it must be recorded.
They also feature a list of injury and illness categories that are not reportable. Here are some highlights, featured in Sec. 1904 of the OSHA regulations:
What’s Not Reportable?
The injury or illness involves signs or symptoms that surface at work but result solely from a non-work-related event or exposure that occurs outside the work environment.
- The injury or illness results solely from voluntary participation in a wellness program or in a medical, fitness or recreational activity such as blood donation, physical examination, flu shot, exercise class, racquetball or baseball.
- The injury or illness is solely the result of an employee eating, drinking or preparing food or drink for personal consumption (whether purchased on the employer’s premises or brought in).
- The injury or illness is solely the result of an employee doing personal tasks (unrelated to his or her employment) at the establishment outside of the employee’s assigned working hours.
- The injury or illness is solely the result of personal grooming, self medication for a non-work-related condition or is intentionally self-inflicted.
- The injury or illness is caused by a motor vehicle accident and occurs on a company parking lot or company access road while the employee is commuting to or from work.
- The illness is the common cold or flu (Note: contagious diseases such as tuberculosis, brucellosis, hepatitis A or plague are considered work-related if the employee is infected at work).
- The illness is a mental illness. Mental illness will not be considered work-related unless the employee voluntarily provides the employer with an opinion from a physician or other licensed health care professional with appropriate training and experience (psychiatrist, psychologist, psychiatric nurse practitioner, or other qualified professional) stating that the employee has a mental illness that is work-related.
If there have never been any injuries in your workplace, congratulations. However, don’t let that lull you into a false sense of security. OSHA’s new regulations up the ante and give you a good reason to review your current policies and procedures with respect to workplace-related illnesses and injuries.
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