August 12, 2020

Volume X, Number 225

August 11, 2020

Subscribe to Latest Legal News and Analysis

August 10, 2020

Subscribe to Latest Legal News and Analysis

OSHA’S New Mandatory Electronic Recordkeeping Rule

As you may be aware, the Occupational Safety and Health Administration (OSHA) has published a new final rule revising the recordkeeping and reporting requirements. OSHA’s summary of its new final rule can be found here and the full text of the recordkeeping regulations can be found here.

While a lot of buzz is occurring around the new electronic submission requirements that become effective Jan. 1, 2017, there are significant developments which are not explicitly referenced in the regulations which require action by Aug. 10, 2016, or employers risk citation by OSHA.  These are contained in the preamble explaining what OSHA feels would be an “unreasonable reporting policy” or that would constitute “discrimination.” Whether these comments to the new rule will ultimately be upheld by administrative judges and the courts is unclear, but they do represent OSHA’s intended enforcement positions. For state plans, the new rules will be effective at a later time depending on the state, but it will be no longer than six months.

  1. New language prohibiting discharge or discrimination: Most employers already have a handbook section or policy that tells employees to report a work-related injury immediately. OSHA is now requiring an explicit statement that says employees have the right to report any injury/illness and that the employer will not discriminate against or discharge an employee for making such a report.

  2. Anti-discrimination (new remedy): The new language will allow OSHA to cite an employer for alleged retaliation or discrimination as it could before under Section 11(c) of the OSH Act (i.e., a whistleblower claim). However, this citation could be issued up to 180 days after the occurrence without any employee having filed a claim. Currently, an employee must file a complaint within 30 days to pursue a whistleblower claim. Now retaliation claims can also be enforced and resolved through the OSHA citation enforcement process that has not before handled these issues.

  3. Drug and alcohol programs: OSHA takes the position that a blanket post-accident test policy would discourage reporting of a work-related injury or illness. Employers should consider revising blanket post-accident test language to make the testing discretionary depending upon the facts and circumstances of the case and to account for the possibility there will  be no testing where the incident was very unlikely to have been caused by employee drug or alcohol use (i.e., injuries caused by repetitive strain or bee sting).

  4. Safety incentive programs: OSHA views policies that provide economic incentives to employees based upon low injury rates or achieving a certain number of days without a recordable injury as a discouragement to reporting. OSHA explains in the preamble to its final rule that such programs might be found to be “retaliatory” depending upon the “specific rules and details” of the program. This has been OSHA’s enforcement position since 2012.  OSHA wants to see programs that encourage safety but do not discourage reporting.

Based on these significant changes, employers should review and revise the above policies or programs to comply with the new regulations by the Aug. 10, 2016, deadline.

© 2020 BARNES & THORNBURG LLPNational Law Review, Volume VI, Number 175


About this Author

Jennifer Stocker, Barnes Thornburg Law Firm, Grand Rapids, Labor and Employment and Litigation Law Attorney

Jennifer Stocker is a partner in the Grand Rapids, Michigan, office of Barnes & Thornburg LLP and a member of the firm’s Labor & Employment Law Department.

Ms. Stocker’s labor and employment practice is national in scope. Her practice emphasis is in the defense of employment litigation filed against employers in state, federal and appellate courts, as well as the defense of charges before state and federal administrative agencies. Her litigation experience includes the defense of FLSA claims, including workplace class actions, FMLA, ADA...

Patricia Ogden Labor and Employment Law Attorney Barnes Thornburg Law Firm Indianapolis

Patricia L. Ogden is a partner in Barnes & Thornburg LLP’s Indianapolis office and a member of the firm’s Labor & Employment Law Department. Ms. Ogden exclusively represents management interests for a broad client base, including both private and public employers of varying size. On the litigation side of her practice, Ms. Ogden routinely defends allegations of wrongful discharge, wage and hour claims, discrimination, retaliation, sexual and other forms of harassment, whistleblower complaints, OSHA violations, worker’s compensation matters, and a variety of other employment claims. In addition to defending claims in federal and state court, Ms. Ogden has represented clients in a variety of administrative forums, including the Department of Labor, matters before the EEOC, federal and state OSHA matters, unemployment appeals, and worker’s compensation claims. With regard to OSHA matters, Ms. Ogden has assisted employers defend claims, including multiple fatality cases, in multiple jurisdictions and with regard to both federal and state plans.

Mark Kittaka, Barnes Thornburg Law Firm, Fort Wayne and Columbus, Labor and Employment Law Attorney

Mark S. Kittaka is a partner and the administrator of the Labor and Employment Law Department of Barnes & Thornburg LLP’s Fort Wayne, Indiana office. Mr. Kittaka’s practice covers all areas of labor and employment law including federal and state litigation concerning discriminatory practices and retaliation claims, including, but not limited to: Title VII race, sex, color, and religious discrimination claims; the Americans with Disabilities Act (ADA) (disability discrimination, reasonable accommodation, interactive process); Age Discrimination in Employment Act (ADEA); the Family and...

Donald P. Lawless, Barnes Thornburg Law Firm, Grand Rapids, Labor and Employment Law Attorney

Donald P. Lawless is a partner in Barnes & Thornburg’s Labor and Employment Law Department in Grand Rapids, Michigan and serves as Vice Chair of the firm's Higher Education Practice Group. He has 25+ years of experience working on behalf of employers to meet their labor and employment law objectives.

The focus of his business practice is in the pharmaceutical, food processing, and service industries. Mr. Lawless’s labor law practice includes contract negotiation, grievance arbitration, and defense of unfair labor practice charges. He advises...