New Safety and Health Regulations Require Businesses to Post Work-Related Injuries Online

New rule shows that OSHA’s approach is to shame employers into promoting safety.

By Doan Phan and Michael Layman

In its final year, the Obama Administration has been churning out new regulations at a feverish pace, sometimes issuing hundreds of new regulations each day. One recent safety and health regulation may greatly affect franchises in numerous business lines.

In May, the Occupational Safety and Health Administration (OSHA) issued its Final Rule on Tracking Workplace Injuries and Illnesses. This new rule requires employers — for the first time — to electronically submit injury and illness data they have recorded on their onsite OSHA Injury and Illness forms. The data will then be posted on the OSHA website where it can be easily accessed by the general public.

To ensure that there will be data posted, OSHA has taken extra measures to ensure that workers will report their injury or illness. Employers are prohibited from discouraging their employees from reporting, and employers are required to tell workers that they are free to report their injury or illness without fear of retaliation. The rule goes further and incorporates already existing statutory prohibitions against retaliation towards employees who report their injuries or illnesses, highlighting OSHA’s push to ensure that all injuries and illnesses are reported.

In addition to the time-consuming burden of the online reporting requirements, the new rule shows that OSHA’s approach here is to shame employers into promoting safety. Not only does publicizing employer records of workplace injuries compromise the privacy between employers and employees, it allows for external organizations — read: labor unions — to distort and manipulate the information against franchise businesses during organizing drives and corporate campaigns.

Let’s be clear what this rule means: the rule requires that injuries and illnesses that occur at an employer’s workplace — which have already been reported and recorded in the business' onsite OSHA Injury and Illness form — now be made public online.

The rule will take effect as the Obama Administration is packing up to leave Washington on Jan. 1, and the new reporting requirements will be phased in over a two-year period. All businesses with more than 250 employees must submit their first Form 300A covering 2016 events by July 1, 2017.

“High Risk” Industries?

Furthermore, certain franchise businesses with less than 249 employees may operate in what OSHA deems, “high-risk industries,” and thus, must perform annual reporting along with business with more than 250 employees. This list of high-risk industries includes merchandise, automotive, tire, grocery and department stores, consumer goods rental stores, certain healthcare and elderly care providers, dry-cleaning and laundry services, to name a few. Thus, even though the rule has a nominal exemption for small businesses with fewer than 250 employees, OSHA has managed to extend it to almost every industry through the catch-all category of “high-risk industries.” Many of these small businesses may struggle to comply with these increased reporting requirements.

Fortunately, the IFA’s Franchise Labor and Workforce Hub website is available to help any IFA members with their OSHA reporting and compliance needs. You are encouraged to visit  www.labor.franchise.org to find the article “OSHA's Final Rule on Electronic Tracking of Workplace Injuries and Illnesses” with a more in-depth analysis of the rule.

For actual legal counsel on complying with the rule, you can visit labor.franchise.org/hotline to be directly connected to a Littler Mendelson labor attorney. All IFA members receive one hour of free labor and employment counsel from Littler as a member benefit.

OSHA’s regulation can be read here: www.osha.gov/recordkeeping/finalrule.

Doan Phan is a Legal Intern at IFA. Michael Layman is Vice President of Regulatory Affairs for IFA and Executive Director of the Coalition to Save Local Businesses. Find them at fransocial.franchise.org.