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Presented by: Raymond Perez, II, Esq.

Of Counsel Jackson Lewis P.C.

OSHA Electronic Recordkeeping and Anti-Retaliation Final Rule:

Practical Tips for Ensuring Compliance

Wednesday, April 5, 2017 1:30 p.m. to 3:00 p.m. Eastern

12:30 p.m. to 2:00 p.m. Central 10:30 a.m. to 12:00 p.m. Pacific

OSHA Electronic Recordkeeping and Anti-Retaliation Final Rule:

Practical Tips for Ensuring Compliance

Presented by:

Raymond Perez, II, Esq.Of Counsel

Jackson Lewis P.C.

April 5, 2017

Two primary aspects to the final rule:

• Electronic Submission of Recordkeeping Records

• Anti-retaliation provisions

©2017 Jackson Lewis P.C.

Electronic Submission- Employers with 250 or more employees (includes part-time,

seasonal, and/or temporary workers) in each establishment must electronically submit their 300, 300A, and 301 forms to OSHA annually

- Employers with more than 20 but less than 250 employees in each establish in certain identified industries must electronically submit their 300A form annually

- Employers who receive notification from OSHA to electronically submit their 300, 300A, and 301 forms to OSHA

OSHA will post the data from employer submissions on a publically accessible website – not to include an information that could be used to identify individual employees

Three ways to submit information:• Web form (manual submission),• Batch file (upload a CSV file to process

single or multiple establishments )• Electronic transmission via application

program interface (API).OSHA expects they will be ready to start accepting company submissions in early 2017 but no update from the agency.

©2017 Jackson Lewis P.C.

Employers required to develop “reasonable” employee injury and illness reporting requirements – employers must inform employees of the following:• Procedures for reporting work-related injuries and illnesses

promptly and accurately - employees must not be deterred or discouraged from reporting

injuries and illnesses (reasonable reporting procedures are required)

• Employees have the right to report work-related injuries and illnesses

• Employers are prohibited from discharging on in any manner discriminating against employees for reporting work-related injuries and illnesses

Post-accident drug testing• “should limit post-accident testing to situations in which employee

drug use is likely to have contributed to the accident and for which the drug test can accurately identify impairment caused by drug use”

Safety Incentive Programs• Be careful that program doesn’t incentivize underreporting – e.g.

bonus for team of employees if no one is injured over defined period of time vs. bonus for employees participating in safety committee

Disciplinary Programs • Employers must not use disciplinary action, or the threat of

disciplinary action, to retaliate against an employee for reporting an injury or illness.

October 19, 2016 OSHA issued guidance to clarify the new rule as it relates to drug testing, safety incentive and disciplinary policies

“Drug testing conducted under a state worker’s compensation law or other state or federal law” does not violate the new rule.

“The central inquiry will be whether the employer had a reasonable basis for believing that drug use by the reporting employee could have contributed to the injury or illness.”

Example: employee who reports a injury sustained as by-stander being drug tested – this would be in violation of the rule because the injury could not possibly have been caused by drug use.

©2017 Jackson Lewis P.C.

Example: drug testing an employee who is injured when he inadvertently drives his forklift into another piece of equipment would not be in violation of section 1904.35(b)(1)(iv) • Employees “conduct – the manner in which he operated the forklift

– contributed to his injury, and because drug use can affect conduct.”

• “Drug testing an employee who engaged in conduct that caused an injury is objectively reasonable because conduct can be affected by drug use.”

OSHA asserted that drug tests that can indicate impairment at the time of the injury or illness would be permissible. • The only test capable of such a determination is an alcohol test.• At this time, OSHA may consider this factor for tests that measure

alcohol use, but not for tests that measure the use of any other drugs.”

©2017 Jackson Lewis P.C.

“Employers must not use incentive programs in a way that penalizes workers for reporting work-related injuries or illness.” • Incentive programs that reward for employee participation in safety

program activities and evaluations, completion of employee training, and safety walkthroughs and identification of hazards are permissible.

Example of a cash prize raffle for each month without a lost time incident. “If the employer cancels the raffle in a particular month simply because an employee reported a lost-time injury without regard to the circumstances of the injury, such a cancellation would likely violation section 1904.35(b)(1)(iv) because it would constitute adverse action against an employee simply for reporting a work-related injury.”

©2017 Jackson Lewis P.C.

Employees reported injuries that may have resulted from worksite incidents occurring a few days earlier. At the time of the incidents, the employees were unaware they had suffered injuries, as symptoms did not develop until later. When the workers realized and reported their injuries, U.S. Steel suspended both workers for 5 days without pay for violating the company’s immediate reporting policy.Employees filed 11(c) whistleblower claims According to OSHA - U.S. Steel’s policy discourages employees from reporting injuries for fear of retaliation

©2017 Jackson Lewis P.C.

Settlement agreement with OSHA:• US Steel paid back wages and interest• Rescind disciplinary suspension• Rescind the immediate injury reporting requirement

US Steel’s new policy:• Employees at work become aware of work-related injury

must report as soon as reasonably possible but in no event later than leaving the plant or 8 hours after becoming aware of work-related injury

• Employees at home who become aware of a work-related injury must report no later than 8 hours after becoming aware of work-related injury

©2017 Jackson Lewis P.C.

OSHA provided several examples of instances of disciplinary programs that would violate section 1904.35(b)(1)(iv):

• Automatically suspending an employee who reports a work-related injury.

• Assigning employees points that have negative employment consequences for reporting a work-related injury.

• Pre-textual discipline, such as disciplining an employee for allegedly violating a safety rule but the real basis for discipline was the injury or illness report. Here, OSHA would look to see if other employees are also disciplined for violating the same safety rule in cases where a violation of that safety rule does not result in any injury.

• Rigid prompt reporting requirements, such as disciplining for not immediately reporting a work-related injury in cases where the employee has not yet had time to identify a work-related injury has occurred.

©2017 Jackson Lewis P.C.

Example: an employer disciplinary program that would discipline an employee who is injured when he is stung by a bee for violating the company’s rule to “maintain situational awareness” and the employer only disciplines for violations of this safety rule when employees are injured. OSHA would consider this a violation of section 1904.35(b)(1)(iv).

On the other hand, an employer who disciplines an employee for by-passing a guard, contrary to the employer’s safety policies, even when that employee is injured would not be a violation of section 1904.35(b)(1)(iv).

©2017 Jackson Lewis P.C.

Disciplining employees for not reporting work-related injuries “immediately” or “as soon as practicable” is permissible where employers allow sufficient time for employees to realize they have suffered a work-related injury.

For example, an employee twists his ankle at work but does not immediately realize he is injured and the next morning his ankle is swollen and he reports his injury. Disciplining an employee for failing to report the injury “immediately” would violate section 1904.35(b)(1)(iv).

However, if this same employee waits a week once he realizes his ankle is swollen and he has suffered a work-related injury then disciplinary action in this case would not be a violation.

A key aspect for any employer disciplinary program will be consistency and whether the employer applies the policy consistently to all employees – those injured and not injured.

©2017 Jackson Lewis P.C.

December 1, 2016

Provisions regarding employee injury reporting policies

Specifically, requirements to inform employees they have a right to report a work-related injury

Prohibition from discharging or otherwise discriminating against employees for reporting work-related injuries or illnesses

Employers can comply with these requirements by posting the “OSHA It’s the Law” poster – April 2015 or newer

January 1, 2017Requirements relating to the electronic submission of Part 1904 recordkeeping formsEstablishments with ≥ 250 employees must submit information from their 2016 form 300A by July 1, 2017Establishments with ≥ 20 employees but < 250 employees in designated high-risk industries must submit information from their 2016 form 300A by July 1, 2017

January 1, 2018 Establishments with ≥ 250 employees must submit information from all 2017 forms (300A, 300, and 301) by July 1, 2018Establishments with ≥ 20 employees but < 250 employees in designated high-risk industries must submit their 2017 form 300A by July 1, 2018

Beginning in 2019 and every year thereafterInformation must be submitted annually by March 2

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Safety Culture 2017 is the must-attend conference for safety and HR professionals looking to jumpstart performance, improve compliance and reduce costly incidents by

championing a positive safety culture.

Safety Culture 2017 will showcase proven best practices from safety experts, regulators, practitioners, and decision-makers across various industries to create a rock-solid blueprint for building a productive, proactive and sustainable safety culture.

You and your colleagues will learn how to:• Align management and supervisors by establishing a shared vision of safety and health objectives• Implement processes that creates more accountability for safety compliance• Evaluate and fine-tune incentives & disciplinary systems to ensure maximum effectiveness• Define safety responsibilities across your organization• Restructure your safety committee model to allow it to function at peak performance• Optimize reporting, hazard tracking and other measurement metrics• Implement proven encouragement models to engage workers in safety training• Build essential leadership skills

Disclaimers

*This webinar is designed to provide accurate and authoritative information about the subject matter covered. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. *This webinar provides general information only and does not constitute legal advice. No attorney-client relationship has been created. If legal advice or other expert assistance is required, the services of a competent professional should be sought. We recommend that you consult with qualified local counsel familiar with your specific situation before taking any action.

Raymond “Ray” Perez is Of Counsel in the Atlanta, Georgia, office of Jackson Lewis P.C. He practices in all areas of labor and employment law with a focus on

FLSA/Wage-Hour laws, employment discrimination, immigration matters, unemployment compensation, occupational safety and health (OSHA), affirmative action programs and policies (OFCCP), employment policies and handbooks, personnel and Form I-9 audits, contract issues, federal contractor provisions and responsibilities, litigation in all forums and litigation avoidance and defense management.

Raymond Perez, II, Esq.