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OSHA Issues New Rule for Electronic Submission of Injury/Illness Data

OSHA has issued a new rule that requires many employers to submit their injury and illness data electronically to OSHA beginning on January 1, 2017 for the 2016 calendar year. All facilities with more than 20 employees within what OSHA terms “certain high-risk industries” will be required to submit their OSHA 300A forms electronically on an annual basis to the agency. OSHA has defined “certain high-risk industries” to include the entire manufacturing sector along with select other industries. Please note that this submission requirement is separate from the Bureau of Labor Statistics (BLS) annual survey. All data points on the OSHA 300A form will be required including many that firms may feel are confidential business information including the number of hours worked by a facility on an annual basis.

In addition, for facilities with 250 or more employees, OSHA will not only require electronic submission of the OSHA 300A, but information from all 2017 forms (and subsequent years) must be provided including OSHA 300, 300A and 301 beginning in 2018. These facilities will be required to provide all information on all required OSHA forms that is not personally identifiable and may include substantial amounts of information that companies or facilities consider to be confidential information.

All information submitted as part of this electronic record(s) will become public records and can be requested through a Freedom of Information Act (FOIA) request.

Baron is advising companies that they should begin working with their human resources and legal staffs now in order to have the necessary mechanisms in place by the time of the first report which will be due on July 1, 2017. We believe there may be substantial hurdles to overcome prior to the submission of the first report including educating employees on the records that are becoming public through this process.

The reporting requirement is being phased in over a two-year period with the first deadline being July 1, 2017 for all covered facilities to submit their 2016 OSHA 300A forms. In 2018, facilities of 20-249 employees will report 2017 OSHA 300A forms and facilities of 250 or more employees will report 2017 OSHA forms (300, 300A and 301) on July 1, 2018. Beginning in 2019, all required submissions will be due to OSHA by March 2nd of the year following the complete calendar year.

The new rule also clarifies existing prohibitions on employers discouraging the reporting of injuries. Employees must be informed of their right to report work-related injuries and illnesses free of retaliation. Employer procedures for reporting workplace injuries and illnesses must be reasonable and not deter reporting. The anti-retaliation protections take effect August 10, 2016.

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