Leech Tishman

OSHA Issues Final Rule on Recordkeeping Amendment/Enforcement Blueprint

By: Daniel R. Flynn, Esq.

In keeping with its promise to continue to push rulemaking initiatives during the Administration’s final year, OSHA has now issued a final rule on the amendment to the recordkeeping standard first proposed in 2013. The bulk of the rule will take effect on January 1, 2017. Establishments with 250 or more employees will only have to submit the 300A summary during 2017. The more onerous requirement to submit the 300 log and the 301 forms will begin in 2018. More information about the final rule and how it will impact your business is available in our previous alert that we issued when the rule was proposed in 2013, which can be accessed here.

In October 2016, OSHA announced that it will postpone enforcement of the anti retaliation provisions of its injury and illness tracking rule. You can read more about this announcement here.

The final rule also codifies OSHA’s concern that employers are deterring or discouraging employees from reporting workplace injuries and illnesses. In an effort to address its concern, OSHA is requiring employers to take the following actions within 90 days.

  • Establish a reasonable procedure for employees to report work-related injuries and illnesses promptly and accurately. A procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness;
  • Inform each employee of the employer’s procedure for reporting work-related injuries and illnesses;
  • Inform each employee that:
    • Employees have the right to report work-related injuries and illnesses; and
    • Employers are prohibited from discharging or in any manner discriminating against employees for reporting work-related injuries or illnesses; and
  • Not discharge or in any manner discriminate against any employee for reporting a work-related injury or illness.

Employers should carefully evaluate their existing injury and illness reporting procedures in light of OSHA’s statement that, “[a] procedure is not reasonable if it would deter or discourage a reasonable employee from accurately reporting a workplace injury or illness.” OSHA has a pending lawsuit against U.S. Steel in which OSHA has taken the position that, “an injury or illness reporting policy that requires employees to report their workplace injuries or illnesses earlier than seven calendar days after the injured or ill employee becomes aware of his or her injury or illness” deters and discourages accurate injury and illness reporting. It is likely that OSHA will take the position that any injury and illness reporting rule that requires employees to report injuries and illnesses within seven days of the occurrence is not reasonable, which raises a number of concerns for employers who are trying to conduct thorough accident investigations in an effort to ensure the safety and health of their employees.

A copy of the final rule is available here. Employers should take the opportunity to ensure that their injury and illness recordkeeping and reporting programs are in full compliance with OSHA’s new standard.

Leech Tishman’s OSHA Compliance, Enforcement & Litigation Subgroup has experience counseling companies on a wide range of OSHA issues. Should you have any questions on your obligations under the new rule, please feel free to contact Daniel R. Flynna partner at Leech Tishman and chair of the firm’s Environmental, Health & Safety Practice Group. Dan also chairs the ESTT’s OSHA subgroup. He can be reached in our Chicago office at 630.536.1171 or dflynn@leechtishman.com.

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Leech Tishman Fuscaldo & Lampl is a full-service law firm dedicated to assisting individuals, businesses, and institutions. Leech Tishman offers legal services in alternative dispute resolution, bankruptcy & creditors’ rights, construction, corporate, employee benefits, employment, energy, environmental, safety & toxic torts, estates & trusts, family law, government relations, immigration, insurance coverage & corporate risk mitigation, intellectual property, internal investigations, international legal matters, litigation, real estate, and taxation. Headquartered in Pittsburgh, PA, Leech Tishman also has offices in Chicago, Los Angeles, New York and Wilmington, DE.

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