New OSHA Rule Requires Certain Businesses to Publicize Workplace Injuries and Illnesses on OSHA Website in Order to Improve Worker Safety

Beginning in 2017, businesses with 250 or more employees, as well as businesses with 20-249 employees in certain high-risk industries, will be required to electronically submit recorded information on workplace injuries and illnesses to the OSHA website. This information, which is already required to be reported to the agency, will now be available to the public via the open website. Data will be searchable on the website by employer; however, information identifying individual employees will not be available.

The agency has decided to engage release this information in an “open format” in order to provide valuable workplace safety information to current and potential employers, employees, and customers as well as employee representatives and public health researchers. It is the agency’s hope that employers will compare their practices to that of other businesses in their industry and be encouraged to increase their safety practices in order to show members of the public that they are at the forefront of workplace safety.

With regards to the specific information to be provided to the public, businesses with 250 or more employees must electronically submit data from OSHA Forms 300 (Log of Work-Related Injuries and Illnesses), 300A (Summary of Work-Related Injuries and Illnesses), and 301 (Injury and Illness Incident Report). Businesses with 20-249 employees classified as being part of high-risk industries must electronically submit data from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). According to OSHA, this “high-risk” classification consists of 66 groups, including broad categories such as waste collection, construction, manufacturing,  building material and supplies dealers, general and special freight trucking, warehousing and storage, as well as less likely categories, like lessors of real estate, performing arts companies, spectator sports, and dry-cleaning and laundry services. Due to its seemingly all encompassing reach, it is crucial that employers research their status in order to determine if they fall within the high-risk industry category, which would automatically subject them to the electronic reporting requirement.<

Additionally, the Rule requires certain anti-retaliation measures be taken by all employers in order to increase complete and accurate employee participation in reporting. First, employers with any number of employees must explicitly inform employees of their right to report. This requirement can be met by posting the current OSHA “Job Safety and Health: It’s the Law” poster. Second, the employers must have a reasonable procedure in place for reporting work-related injuries and illnesses in addition to not discouraging their employees from reporting said injuries and illnesses. Lastly, the employer may not engage in retaliatory behavior against employees for reporting their work-related injuries and illnesses. OSHA does not provide specific examples of per se reasonable or unreasonable procedures, but references a vague “reasonable employee” standard. In order to navigate this ambiguity and determine whether or not your business is engaging in acceptable practices, it is imperative to contact an attorney with experience in this field in order to comply with these anti-retaliation measures.

Although commenters were quick to accuse the agency of engaging in public shaming in order to pressure employers into altering their practices and effectively deterring accurate and complete reporting from employers, the Rule takes effect on January 1, 2017, with the new requirements to be phased in over the next three years.