In May 2016, the Occupational Safety and Health Administration (OSHA) announced that employers in high-hazard industries, including in the construction sector, would be required to electronically send injury and illness data that they are already required to collect to be posted on the federal agency’s website. The new rule was to take effect July 1 but has now been delayed. According to OSHA, it is suspending the electronic recordkeeping rule’s filing deadline in order to give employers more time to comply. A new deadline has not been announced.
To recap, the new rule adds requirements for electronic submission to OSHA of the injury and illness information employers are already required to keep. This includes:
- Establishments with 250 or more employees must electronically submit information from their portion of the reporting form.
- Establishments with 20 or more employees, but fewer than 250 employees, in many designated industries, must electronically submit information to OSHA or OSHA’s designee annually. (This regulation covers many industries, most notably construction, manufacturing and most retailing operations).
- OSHA will then publish the filings on its website. The electronic submission requirement in the final rule does not in any way change an employer’s obligation to complete and retain injury and illness records.
Although OSHA stated that the new rule was designed to “nudge” employers to focus on safety, it has been considered by businesses and industry associations as controversial from the start. In fact, there are ongoing lawsuits challenging the rule, with business groups arguing that public disclosure would unreasonably harm employers. The National Association of Home Builders — along with the U.S. Chamber of Commerce, the Oklahoma State Homebuilders Association, the State Chamber of Oklahoma and three poultry associations — filed a lawsuit in January against the U.S. Department of Labor and OSHA in the U.S. District Court for the Western District of Oklahoma relating to OSHA’s final recordkeeping rule. The lawsuit claims that the rule, “Improve Tracking of Workplace Injuries and Illnesses,” overreaches and violates businesses’ rights under the First and Fifth amendments to the U.S. Constitution, and is effectively asking the court to apply strict scrutiny in determining the rule’s constitutionality.
The lawsuit also claims that OSHA doesn’t have the authority to create what it says will be a public database for employers’ injury and illness records, and it argues that the information published won’t impact workplace safety or health. Instead, the lawsuit calls the rule “an imposition on businesses" and says that the publication of “confidential and proprietary information” could be misused, exposing the business "to significant reputational harm.”
Anti-Retaliation Provisions in the New Rule
It’s important to note that the electronic record-keeping rule also contains anti-retaliation provisions, which went into effect December 1, 2016, specifying that employers can’t discourage workers from reporting injuries or illnesses. Employers must inform workers of their right to report work-related injuries and illnesses, and they can't retaliate against employees for doing so. OSHA guidance on the anti-retaliation provisions says that employers must establish reasonable procedures for reporting injuries. The guidance also puts certain limitations on safety incentive programs and drug-testing policies that might deter workers from reporting accidents.
Business groups have also challenged the anti-retaliation provisions in court, arguing that OSHA exceeded its authority when it created these aspects of the rule. A court refused to grant a preliminary injunction that would have temporarily blocked the provisions, however, it is still possible that the court could ultimately deem them unlawful.
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Sources: Construction Dive, SHRM