Making Sense of OSHA’s Confusing New Recordkeeping Rules

Recently  OSHA delayed enforcement of its recordkeeping rule. The announcement drew a lot of attention and, with the new deadline less than 90 days away, I wanted to provide some guidance to help you comply with some of the more controversial pieces.  Much of industry’s confusion is over:

  • The requirements to inform and encourage employees to report injuries in a timely manner, and
  • OSHA’s anti-retribution clause, under which OSHA may fine companies that try to discourage reporting. That included a warning from OSHA to not use post-incident drug testing as a way to discourage reporting.

OSHA says it will come out with guidance on the requirements, but in the meantime, here is some additional information:

Informing workers of their right to report injuries – Employers have a responsibility to make sure their employees understand they have a right to report injuries and illnesses without threat of retaliation. Fortunately this should not be hard to comply with.

  1. Get the latest edition of the OSHA “It’s the Law” worker’s rights poster and post it in a conspicuous place. It can be found here:
  2. Cover the information in a safety meeting or toolbox talk. Document the subject and participation by workers.
  3. Update written safety policies with the regulatory information.

Injury Reporting Procedures – OSHA has said, “An employer’s procedure for reporting work-related injuries and illnesses must be reasonable and must not deter or discourage employees from reporting.” Perform an internal assessment. How do employees report injuries in your company? Who do they report to? What is the reaction of supervisors or managers?


Do not retaliate against workers for reporting injuries – This is a lot trickier than it may appear, because OSHA has taken the position that company policies that punish workers for taking too long to report an injury are retaliatory. From a company perspective when an employee claims that an injury occurred days or even weeks late, it makes it hard to determine if it was indeed work-related and covered by workers comp.

However, in February, OSHA sued US Steel for suspending two workers without pay for five days for not reporting injuries in a timely manner. OSHA said the policy was retaliatory and that workers should have at least seven days to report an injury.  That case settled last month and, among other things, US Steel agreed to a policy that says workers must report injuries as soon as reasonably possible, but in no event later than leaving the plant or eight hours after becoming aware of the injury or illness. They must also report near misses as soon as they are aware of them and no later than when they leave the plant.

What does that mean for employers? You really need to ask qualified counsel that, but it appears to make it easier to adopt policies that require reporting in a reasonable time-frame. However, companies are also advised to communicate very clearly with their employees why they have the policy and why quick reporting helps improve their overall recovery if they are injured.

Again, OSHA has said it will come out with guidance for industry on compliance, but these suggestions should help companies prepare for the new deadline, which hits November 1st.
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