By Pamela Wolf, J.D. OSHA has released its final rule to modernize injury data collection to better inform workers, employers, the public, and OSHA about workplace hazards. The agency said that via the final regulation, it is applying the insights of behavioral economics to improve workplace safety and prevent injuries and illnesses. The final rule, which has been in the making since November 2013, was published in the Federal Register on May 12. Data submission and public posting. The final rule makes changes to 29 C.F.R. Parts 1904 and 1902 and requires employers in certain industries to electronically submit injury and illness data to OSHA that employers are already required to keep under existing regulations. The frequency and content of these establishment-specific submissions is set forth in the final rule; it is dependent on the size and industry of the employer. OSHA intends to post data from these submissions on a publicly accessible website, but it will not post any information that could be used to identify individual employees. Specifically, under the new rule, all establishments with 250 or more employees in industries covered by the recordkeeping regulation must electronically submit injury and illness information from OSHA Forms 300, 300A, and 301. Establishments with 20-249 employees in certain industries must electronically submit information from OSHA Form 300A only, OSHA said in a press release explaining the final rule’s requirements. Retaliation. In addition, the final rule amends OSHA’s recordkeeping regulation to update requirements on how employers inform their employees about reporting work-related injuries and illnesses to the employer. The rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation; clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. The rule also amends OSHA’s existing recordkeeping regulation to clarify the rights of employees and their representatives to access the injury and illness records. Initial proposal. On November 8, 2013, OSHA issued a proposed rule that would amend its recordkeeping regulations to add requirements for electronic submission of injury and illness information that employers are already required to keep. The preamble to the proposal explained that, in line with applicable federal law, such as FOIA and specific provisions of Part 1904, OSHA intended to post the recordkeeping data it collects on its public website. However, at a public meeting in January 2014, participants raised concerns that the proposed electronic submission requirement might motivate employers to under-report injuries and illnesses. Some participants said that employers already discourage employees from reporting injuries or illnesses by disciplining or taking other adverse action against employees who file injury and illness reports. Follow-up on adverse action concerns. In light of comments raised at the January 2014 meeting, OSHA issued a supplemental notice to the proposed rule on August 14, 2014, soliciting comments on whether to amend the Part 1904 regulations to prohibit employers from taking adverse action against employees for reporting occupational injuries and illnesses. The agency received 311 comments on the electronic submission section of the proposed rule and 142 comments on the supplemental notice to the proposed rule. OSHA addressed those comments in its final rule notice. Studying the data. OSHA said that using data collected under the new rule, it will create the largest publicly available data set on work injuries and illnesses, enabling researchers to better study injury causation, identify new workplace safety hazards before they become widespread, and evaluate the effectiveness of injury and illness prevention activities. The agency stressed that it will remove all personally identifiable information associated with the data before making it publicly accessible. “Since high injury rates are a sign of poor management, no employer wants to be seen publicly as operating a dangerous workplace,” observed Assistant Secretary of Labor for Occupational Safety and Health Dr. David Michaels. “Our new reporting requirements will ‘nudge’ employers to prevent worker injuries and illnesses to demonstrate to investors, job seekers, customers and the public that they operate safe and well-managed facilities. Access to injury data will also help OSHA better target our compliance assistance and enforcement resources at establishments where workers are at greatest risk, and enable ‘big data’ researchers to apply their skills to making workplaces safer.” Effective date. The new requirements are effective August 10, 2016, with phased-in data submissions beginning in 2017. OSHA noted that these requirements do not add to or change an employer’s obligation to complete and retain injury and illness records under the Recording and Reporting Occupational Injuries and Illnesses regulation.
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