OSHA Finalizes Workplace Recordkeeping and Reporting Rule

The Occupational Safety and Health Administration (OSHA) finalized its "Improve Tracking of Workplace Injuries and Illnesses" rule this week.¹ The rule requires employers to electronically submit records of workplace injuries and illnesses to OSHA for inclusion on the agency’s website, prohibits employers from retaliating against employees for reporting such incidents, and ensures that businesses have procedures for reporting workplace injuries that do not discourage employees from filing reports.

Existing law requires covered employers to collect and record data on injuries and illnesses in the workplace,² and OSHA already has an online database of such records for more than 240,000 work sites.³ The new rule makes electronic reporting of these records mandatory for covered businesses with 250 or more employees, and for smaller businesses (those between 20–249 employees) that operate in certain industries, including agriculture, construction, and manufacturing. Moreover, despite privacy and due process concerns raised in public comments, OSHA makes it clear in the preamble that it intends to post the information on its website.

According to a blog post by Deputy Labor Secretary Chris Lu coinciding with the announcement of the final rule: "OSHA's final rule will modernize the current system by taking establishment-specific injury information that is already collected by employers and making it available to the public once it is cleaned of personally identifiable information."⁴ The agency hopes that the new rule will “encourage employers, workers, researchers, the public and OSHA to work together to prevent work-related injuries and illnesses.”⁵

Despite Secretary Lu's comments, there are concerns that the new rule imposes onerous requirements on many employers. Among other things, the final rule takes a somewhat novel approach to OSHA's rulemaking authority by authorizing OSHA (under § 1904.35) to cite employers for taking what OSHA perceives to be retaliatory action against employees for reporting injuries or illnesses, even if the employee has not filed a claim of discrimination under Section 11(c) of the OSH Act.

OSHA received over 1,800 comments on its proposal during the rulemaking process. According to one industry study, compliance costs for covered businesses may exceed $1.1 billion.⁶ Not surprisingly, OSHA’s economic analysis estimates far lower compliance costs.

There is no question that businesses need to prepare not only for these new reporting requirements—which will be phased in starting January 1, 2017—but also for increased enforcement activity resulting from these enhanced obligations.

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1 Improve Tracking of Workplace Injuries and Illnesses (May 11, 2016) (to be codified at 29 C.F.R. Parts 1902 and 1904).

2 See 29 C.F.R. § 1904.

3 See Establishment Specific Injury & Illness Data (OSHA Data Initiative), U.S. DEP’T OF LABOR, (last visited May 11, 2016).

4 Chris Lu, Transparent Data Will Make Workplaces Safer. Here’s How., U.S. DEP’T OF LABOR BLOG (May 11, 2016).

5Id.

6 United States Chamber of Commerce, Occupational Safety and Health Administration Proposed Rule to Improve Tracking of Workplace Injuries and Illnesses, 78 Fed. Reg. 67,254 (Nov. 8, 2013), Dockets Number OSHA-2013-0023, at 25 (Mar. 10, 2014).