The New OSHA Reporting Requirements: Are They Much Ado About Nothing?
Every time the federal government issues new a set of regulations governing some aspect of the workplace, human resources and health and safety managers can expect to receive dozens of “e-alerts” from employment lawyers at different law firms warning them that the new rules will dramatically change the way they do business. And, in defense of my fellow employment lawyers, there is no question that—at least, during the last eight years—the federal government has issued many new regulations and administrative decisions that should be considered as “game changing” and worthy of serious concern to any business. I am not so sure that OSHA’s new regulations requiring many employers to report their injury and illness information electronically fall into this category.
1. Electronic Recordkeeping
So what really is different? First, the new regulations do not change the existing recordkeeping requirements other than to require many employers (depending on their size and industry) to submit the information in electronic form to OSHA, whereas in the past, employers were only required to post summary information on the company bulletin boards and produce the information to OSHA when requested.
Opponents of the regulation have articulated two principal concerns with submitting electronically. First, there is the concern that the government will be able to conduct meaningful analyses of this data in order to justify inspections of facilities or to catch recordkeeping inconsistencies. Given the government’s antiquated computer capabilities and the current staffing at OSHA, I think this concern is overblown. While I think it is reasonable to expect OSHA to review this information for a particular employer when investigating a specific complaint or conducting an investigation at that employer’s site, I would not expect the government to conduct any systematic analyses of this data—at least for the foreseeable future.
The second concern is somewhat more valid, in that OSHA has stated that it intends to publicly post the data that employers submit, minus any personal identifiable information. This would allow plaintiffs’ lawyers, shareholder activists, union organizers, journalists, community organizers, or customers to easily access the employer’s injury statistics, without having to make FOIA requests or be in engaged in litigation or union negotiations. By posting this information, OSHA presumably hopes to enlist others in its recent practice of “shaming” employers that commit too many violations. In reality, however, the information that is maintained in the OSHA 300 Logs, the 300A Summaries, and the 301 Injury and Illness Incident Reports tends to make for pretty boring reading, and that information can be quite meaningless unless the reader has done a careful analysis of similarly sized employers in the same industry. While some will certainly try to use this information for their advantage, I am not sure that they will get much “bang” from what appears on the OSHA website.
On the other hand, the electronic filing requirement may actually result in more employers complying with recordkeeping requirements. Too often, I have seen clients get into trouble because they had difficulty maintaining their paper records and could not find last years’ OSHA injury records when an inspector showed up to investigate a recent complaint. In my experience, companies that have developed good electronic systems tend to do a better job with recordkeeping. If OSHA is able to create an electronic recordkeeping system that is user-friendly, employers that have not used such systems may benefit. Additionally, HSE managers may have an easier time enlisting the support of their plant manager in safety initiatives if the plant manager realizes that the company’s injury records will be readily available to his bosses, shareholders or customers that are concerned about safety issues.
2. Notice to Employees of Right to Report Injuries
The only other significant change in the regulations is that employers will now be required to inform employees of their right to report work-related injuries and illness and let them know that the employer is prohibited from discharging or in any manner discriminating against employees for making such reports. In fact, the current regulations already make clear that an employee could have a viable complaint under Section 11(c) if he were discriminated against for reporting a work-related injury or illness. However, many of us who practice in this area will acknowledge that most 11(c) complaints originate in complaints to OSHA, and it is rare for a terminated employee to bring such a complaint simply because they had reported an injury. In fact, few plaintiffs’ lawyers appear to be aware of Section 11(c), much less its 90-day statute of limitations. Thus, providing employees with notice of this right could educate employees and their lawyers about the viability of 11(c) complaints and possibly lead to an increase in 11(c) complaints.
Thus, while employers may not openly embrace these new regulations, and despite the real concerns posed by the new notice requirements, when compared to other regulatory enactments in the last eight years, this is pretty small stuff.
This information is provided by Vinson & Elkins LLP for educational and informational purposes only and is not intended, nor should it be construed, as legal advice.