The latest step in an ongoing regulatory saga, on Jan. 25, the Occupational Safety and Health Administration (OSHA) published its final rule reducing the negative impact of employer electronic injury and illness recordkeeping rules originally adopted by the Obama-era agency.
The final rules eliminate the earlier requirement for employers to electronically submit Forms 300 and 301. The rule still requires employer establishments with 250 or more employees and with 20 to 249 employees in certain designated industries to electronically submit Form 300A annually.
The deadline for employers to file their reports covering 2018 injury data is March 2. One of the major reasons OSHA cited for the change was the need to preserve worker privacy. Nothing in the final rules revokes an employer’s duty to maintain OSHA Forms 300 and 301 onsite for future OSHA inspection.
Employers also were obligated to post the 300A illness and injury form in workplaces by Feb. 1. That form is not filed with the agency, but penalties can accrue if it is not posted in worksites until April 30, and a copy must be retained for five years.
The agency had proposed making changes to the electronic reporting rules in July of last year.
The Trump OSHA was responding to sweeping changes made in 2016 by the Obama-era agency, when it was proposed that OSHA 300 logs and 301 forms would be published on OSHA’s website, but with employee names and some of their other personal information redacted.
However, employers objected that the public reports would include sensitive information about medical treatment, the nature of the injury or illness, a description of how the injury occurred and other personal data that would make it easy to identify the employee involved. In addition, the 2016 rule called for publishing employer information on the Internet for all to see consistent with agency’s policy at that time of using all opportunities for publicly “shaming” companies.
Employers also viewed the Obama-era rules as a generous gift to union organizers and tort lawyers to help them locate additional targets in the private sector.
The AFL–CIO and other unions were not happy with OSHA’s proposal to reverse the Obama-era changes and they asked the Administration to withdraw the newest version of the rules, which the Obama White House declined to do. It is expected that the unions will mount legal challenges against the new rules now that they have been finalized.
The States and the Future
Several states that operate their own OSHA programs delayed adopting the earlier electronic recordkeeping rules due to the uncertainty surrounding the changes. Federal OSHA told employers in these state plans to submit 300A data in spite of not being subject to the rule or federal OSHA’s jurisdiction. Last April, federal OSHA announced that employers in all state plan states must implement the electronic recordkeeping rules. By the end of 2018, only three states had failed to adopt the rules: Maryland, Washington and Wyoming.
As usual, California is different. Last year the state legislature adopted a new state law requiring Cal/OSHA to monitor the federal rulemaking and its implementation of the electronic recordkeeping rule. If Cal/OSHA determines that OSHA has “eliminated” or “substantially diminished” the requirements for employers to submit injury and illness data, the state agency will evaluate how to go about implementing changes it believes are necessary to protect those goals.
Another new California law seeks to undo an OSHA policy by changing the statute of limitations for citations or violations involving recordkeeping requirements from six months after a violation occurs to either the date that the violation was corrected or the date the injury is discovered.
Some on the employer side of the issue don’t believe the new rules went far enough. Eric J. Conn and Daniel C. Deacon of the law firm of Conn Maciel Carey LLP argue that the scope of the change is much too small and fails to address most of industry’s concerns.
“Remember that only workplaces with 250+ employees were ever going to have to submit 300 and 301 level data,” they note. “By eliminating that one requirement on that one subset of workplaces affects the tiniest percentage of workplaces. Every employer that was required to submit injury data yesterday, is still required to submit injury data now, and most employers that were covered by this rule will be submitting the exact same data they were already required to submit.”
Conn and Deacon say OSHA should still add provisions to prevent the data that is collected from being published, or at least not published along with employer-identifying information, which is how OSHA’s sister Labor Department agency, the Bureau of Labor Statistics, has handled the injury data it has collected for decades.
They also urge OSHA to modify the size threshold from workplaces with 25 employees to 100 employees, which would unburden the really small employers currently affected by this rule. Modifying the definition of “high hazard industry” that swept thousands of small employers into the rule should be changed as well, the attorneys say.
“Right now, the threshold average Days Away Restricted or Transferred (DART) rate that makes an industry ‘high hazard’ and therefore covered by the data submission requirements is essentially exactly average. If OSHA recalibrates the definition of high hazard industry to where it has always been under the Site-Specific Targeting (SST) program, a great burden would be lifted from many small employers.”
Because these and other changes were not included in the most recent rulemaking, court challenges mounted earlier that were halted to sllow for OSHA’s reconsideration of the rule will almost certainly be re-activated. This possibly could create an opportunity for the agency to address these issues in the future, Conn and. Deacon say.