OSHA’s “Name and Shame” Regulations Hit The Street.

The Occupational Safety and Health Administration (OSHA) released its long-awaited changes in injury reporting requirements on May 11th, saying it was going to “nudge” employers to prevent workplace injuries and illnesses.   “Shove” is more like it.

Although the actual regulatory language is relatively short, there is a lot to digest there and it will take some time to fully see the impact.  However, the bottom line is that starting next year American businesses will be required to post their injuries online for the world to see.  It is a continuation of a long-held OSHA philosophy to publicly identify companies that do not provide what the agency considers to be safe workplaces.

Under the rule, all companies with 250 or more employees must post their OSHA 300 (Log of Work-Related Injuries and Illnesses), 300A (Summary of Work-Related Injuries and Illnesses), and 301 (Injury and Illness Incident Report) forms beginning in January 2017.  Companies with 20-249 employees in certain high risk industries must file the 300A summary every year, starting in 2017.    Companies with less than 10 employees are still exempt from reporting, but it gets a little bit hazy when you look at companies with 10-20 employees or industries (like oil and gas) which have been identified in the past as being special focus industries, but were not on the list.

A few other points from the rulemaking:

Post-incident drug and alcohol testing – One of the biggest questions is how the rule’s language on post injury testing will be interpreted.  OSHA plainly states: “Blanket post-injury drug testing policies deter proper reporting,”  and “drug testing policies should limit post-incident testing to situations in which employee drug use is likely to have contributed to the incident, and for which the drug test can accurately identify impairment caused by drug use.”   But what does that mean?   Does OSHA really think that post-incident drug-testing is performed to “punish” workers for getting hurt?  There is a very good overview of this aspect of the new rule by attorney Kathryn J. Russo and I would urge employers to read it.  The only thing that I would add is that the creation of a drug and alcohol-free workplace and routine testing may be the most important safety measure adopted by transportation industries.  Discouraging post-incident testing is a dangerous step backwards.

Anti-retaliation policy – The regulation includes a couple of other requirements that may have impacts that we can’t gauge for some time.  The first is an anti-retaliation policy.  Companies must inform their workers that they have a right to report work-related injuries and illnesses without retaliation. OSHA suggests employers post its “Job Safety and Health – It’s the Law” Workers’ Right Poster to help accomplish this.

Emphasis on injuries as a measure of workplace safety – Granted, it is important to capture and analyze injury data.  But frankly a lot of industries are too obsessed with boiling their safety programs down to a number that can be reported at the weekly management meeting or used by host companies to decide which contractor to use.     Accidents tell you what happened.  Hazards and near misses tell you what could happen. As company safety programs evolve, they move away from injuries and focus on hazards and near misses.

For a smaller company, one incident a year raises their magic number so high that it can disqualify them from certain jobs.  Sticking that number up for the world to see may have unintended consequences that we can hardly define at this point.

Finally, and most importantly, this new regulation underscores the importance of having strong accident prevention programs and equally strong post accident injury management programs.   Contact me if you need some help on either of those programs.

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