On May 12, 2016, the Occupational Safety & Health Administration (OSHA) published its final rule modernizing injury and illness (I/I) data collection and requiring that many OSHA-regulated employers with 20 or more employees electronically submit their mandatory OSHA forms to the agency on an annual basis, effective July 1, 2017. The data submitted will be publicly searchable by employer name. This creates some legal issues concerning employee privacy, as well as exposure for potential class action targeting if patterns of illnesses are reported.
OSHA plans to use the data it receives from employers to target both enforcement resources (e.g., the site-specific targeting approach to programmed OSHA inspections) and to offer compliance assistance at establishments where workers are at risk. The data collection effort will also facilitate research on occupational injuries and illnesses and enable the government to identify emergent hazards that are harming workers, so that interventions can occur.
The anti-retaliation provisions of the new rule are already in effect, as of December 1, 2016, and prohibit employers from discriminating against worker for reporting an I/I or for engaging in any other protected activity under Section 11(c) of the Occupational Safety & Health Act of 1970 (OSH Act). Employers also must have a reasonable procedure for reporting work-related I/I that does not deter workers from filing such reports. Workers must be trained on the revised procedures.
OSHA takes the position that drug testing of injured workers can deter reporting, and therefore would violate the standard unless the employer has a reasonable basis for determining that the worker’s impairment was a causal factor in the accident. Similarly, any disparate treatment in terms of discipline between injured and uninjured workers for the same offense can be a violation. Finally, safety incentive programs that provide a benefit to workers for going a period of time injury-free are prohibited under the new rule.
OSHA can fine employers up to $124,709 for each willful violation of employees’ Section 11(c) rights now, by citing the employer under 29 CFR 1904.36, even if the affected worker(s) do not file a discrimination complaint with the agency.
Adele L. Abrams, Esq., CMSP
Law Office of Adele L. Abrams PC