OSHA Vastly Expands Recordkeeping Rulemaking

OSHA Vastly Expands Recordkeeping Rulemaking to Address Anecdotal Reports of Employer Discrimination and Retaliation Again Employees who Report Injuries and Illnesses

The Occupational Safety and Health Administration (OSHA) announced an extension of the comment period on the Improved Tracking of Workplace Injuries and Illnesses proposed rule to Oct. 14, 2014. The proposal was published on Nov. 8, 2013, with a comment period that originally closed on March 8, 2014, and would change the recordkeeping regulation to require employers to electronically submit OSHA 300 Log information directly to the agency on an annual basis with the level of detail reported based on company size. 

In the Federal Register Notice OSHA indicates the extension is in response to concerns raised during the public meetings held on January 9 and 10, 2014, that the proposal could potentially result in employers adopting policies and procedures to discourage injury and illness reporting.  AGC worries that the proposed changes to the recordkeeping rule as detailed below will have a direct impact on an employer’s ability to conduct timely incident/accident investigations. In addition, they unfortunately could hamper an employer’s ability enforce established safety and health policies within their companies.  This could be especially problematic on jobsites with multiple employers which rely on and most often require effective, timely communication of safety and health hazards to ensure corrective actions are implemented to prevent unnecessary exposures. Additionally, the proposed changes could encourage delayed injury reporting and would likely limit the ability of employers to validate workers compensation claims, by delaying claims reporting deadlines. This also could lead to delayed treatment to the injured/ill employee, or result in inaccurate claims as employers may be held liable for incidents that may not have occurred on their jobsites due to the inability to enforce timely incident/accident reporting policies.   

OSHA is proposing the following amendments (with examples from OSHA included) to the recordkeeping regulation: 

1)      Requiring employers to inform their employees that the employees have a right to report injuries and illnesses

2)      Requiring the injury and illness reporting procedures established by the employer under 29 CFR 1904.35(a)(1) and (b)(1) to be reasonable and unduly burdensome.  Examples of activities that would be prohibited include:

  1.  Requiring employees to report in-person at a location distant from the employee’s workplace; and

b.      Penalizing employees for failing to report an injury within a specified time period (e.g. within 24 hours of an incident) even if the employee did not realize that they were injured or made ill until after that time.

3)      Prohibiting employers from disciplining employees for reporting injuries and illnesses. Examples of activities that would be prohibited include:

a.       Requiring employees who reported injuries to wear fluorescent orange vests;

b.      Requiring an employee who reported an injury to undergo drug testing where there is no reason to suspect drug use;

c.       Enrolling employees who report an injury in an “Accident Repeater Program” that included mandatory counseling on workplace safety and progressively more serious sanctions for additional reports ending in termination;

d.      Employers disciplining employees for violating a safety rule, if the employee claims they were terminated for reporting and injury or illness; Terminating employees who are injured because they failed to abide by the employers safety rules;

e.      Employers selectively enforcing vague safety rules such as maintain “situational awareness” and “work carefully” only against employees who reported injuries and illnesses; and

f.        Disciplining employees who report injuries or illnesses, or terminating employees who have more than a set number of injuries.

AGC is concerned that the proposed changes – particularly, changes 2) and 3) above and the examples provided in the Federal Register Notice which provides some insight as to how OSHA will enforced the proposed changes – will significantly limit how employers are able to enforce policies established to ensure timely reporting of incidents as well as enforcing other safety and health policies.  We are asking that you please review the attached Federal Register Notice and provide any feedback to assist with responding to the rulemaking.   AGC also encourages chapters and members to submit comments on the rulemaking to express their concerns with the proposed changes to the recordkeeping regulation.  To submit comments access at and insert OSHA-2013-0023 in the search bar on the home page. OSHA is particularly interested in responses to the following questions:

1)      Are you aware of situations where employers have discouraged the reporting of injuries and illnesses? If so, describe any techniques, practices, or procedures used by employers that you are aware of. If such techniques, practices, or procedures are in writing, please provide a copy.

2)      Will the fact that employer injury and illness statistics will be publically available on the internet cause some employers to discourage their employees from reporting injuries and illnesses? Why or why not? If so, what practices or policies do you expect such employers to adopt?

3)      Are you aware of any studies or reports on practices that discourage injury and illness reporting? If so, please provide them.

4)      Do you or does your employer currently inform employees of their right to report injuries and illnesses? If so, please describe how and when this information is provided.

5)      Are there any difficulties or barriers an employer might face in trying to provide such information to its employees? If so, please describe them.

6)      How might an employer best provide this information: orally to the employee, through a written notice, posting, or in some other manner?

7)      What procedures do you or does your employer have about the time and manner of reporting injuries and illnesses? How do these procedures assist in the collection and maintenance of accurate records? May an employee be disciplined for failing to observe these procedures? If so, what kind of discipline may be imposed?

8)      Are you aware of any examples of reporting requirements that you consider to be unreasonably burdensome and could discourage reporting? What are they?

9)      How should OSHA clarify the requirement that reporting requirements are "reasonable and not unduly burdensome"?

10)   Are you aware of employer practices or policies to take adverse action  against persons who report injuries or illnesses? Please describe them.

11)   Are you aware of any particular situations where an employee decided not to report an injury or illness to his or her employer because of a fear that the employer would take adverse action against the employee? If so, please describe the situation, including the nature of the injury or illness and the reasons the employee had for believing he or she would be retaliated against.

12)   What kinds of adverse actions might lead an employee to decide not to report an injury or illness? Are there other employer actions that would not dissuade a reasonable employee from reporting an injury or illness?

13)   OSHA encourages employers to enforce safety rules as part of a well-functioning workplace safety program. Are there any employer practices that OSHA should explicitly exclude under this provision to ensure that employers are able to run an effective workplace safety program?

14)   What other actions can OSHA take to address the issue of employers who discourage employees from reporting injuries and illnesses?

15)   Is the fact that retaliation for reporting workplace injuries and illnesses is illegal communicated in your workplace? How? What costs are associated with communicating this information?

16)   What kinds of existing reporting procedures might be prohibited by this requirement? What costs or other detrimental effects might employers incur if they are prevented from requiring these procedures?

17)   Do you anticipate any additional costs associated with the enforcement of the prohibition against discrimination through the citation and penalty provisions of the OSH Act that would not be incurred if OSHA instead used its authority under section 11(c) of the Act? If so, please describe them.

18)   OSHA welcomes any information you have on the costs, benefits, and feasibility of the three provisions discussed in this supplemental notice. What are the costs and benefits of using this rulemaking to address the issue of employers who discourage employees from reporting injuries and illnesses? Are the cost estimates in this document accurate?

If you have any questions, or for additional information, please contact Kevin Cannon at (703)837-5410 or

Kevin Cannon, CSP

Director, Safety and Health

Government and Public Affairs Dept.

Associated General Contractors of America

2300 Wilson Blvd, Suite 400

Arlington, VA 22201

(703) 837-5410 Direct

(703) 837-5407 Fax                                                                     


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