OSHA’s New Electronic Reporting Regulation

Starting in 2017, many employers will be required to submit their OSHA 300, 300A, and 301 forms to OSHA electronically.  Additionally, by December 1, 2016 all employers will need to develop procedures and inform employees on how to report injuries and illnesses, along with informing them of their rights to report without discrimination.

The following chart contains the Electronic Reporting Requirements:

Almost all industries in NAICS codes up to 4200 are required at 20 employees and above.

This new regulation will also have OSHA scrutinizing disciplinary procedures, incentive programs, and post-accident drug and alcohol testing.

Employers must ensure that disciplinary measures are applied consistently to all employees for both injured and non-injured employees.  For example, if an employee removes a safety guard and is subsequently injured, discipline would be acceptable, but if that same employee reports carpal tunnel, the employee should not be disciplined.  You must show that the employee broke a safety rule and that it was the cause of the injury.

If you have an incentive program, your program cannot deter employees from reporting injuries or illnesses.  If you have an incentive program and a substantial incentive is available based on injuries/illnesses, you may be scrutinized by OSHA.  For example, if you have a substantial (substantial has not been defined by OSHA) cash drawing and it is cancelled because of a reported injury/illness, this may be considered an action that violates 1904.35(b) (1) (iv). If you do have an incentive program, it should focus on leading indicators (inspections, attending meetings, etc.) vs lagging indicators (injuries).

Post-accident drug and alcohol testing is not prohibited for employees who report work-related injuries/illnesses, so long as they have an objectively reasonable basis for testing.  Testing for carpal tunnel may not be acceptable, but testing for an employee who falls off a ladder can be acceptable as the use of drugs and alcohol could have been a contributing cause to the fall.  OSHA will be evaluating this on a case by case basis, but has indicated a blanket policy on post injury/illness drug and alcohol testing may be in violation as it may lead employees to not report injury and illnesses.

OSHA will allow post-accident drug and alcohol testing if required by federal or state law.  Additionally, it will be allowed if a state worker’s compensation law allows it for a premium reduction, such as in a drug-free workplace.

This has OSHA looking again at whether programs such as incentives, post injury/illness drug and alcohol testing, and disciplinary programs deter employees from reporting injuries. 

The following links contain the final rule and some direction: 

https://www.osha.gov/recordkeeping/finalrule/interp_recordkeeping_101816.html

https://www.osha.gov/recordkeeping/finalrule/finalrule_faq.html

If you have any questions, please contact your trusted advisors at Hausmann-Johnson Insurance.