By Eric J. Conn and Dan C. Deacon
The December 15, 2017 deadline for large employers and small employers in certain “high hazard industries” to submit injury and illness data to OSHA is less than a month away. We have been tracking closely the Trump Administration’s treatment of OSHA’s new E-Recordkeeping and Anti-Retaliation Rule, and while there have been plenty of signals that this rule is due for an overhaul, or even possibly to be rescinded, it appears that the initial data submission deadline of December 15th is going to stand.
Therefore, if employers have not already done so, they should immediately evaluate whether the rule applies to any or all of their workplaces, get familiar with and set up an account in OSHA’s Injury Tracking Application (the portal that will receive the injury data), and submit covered injury data (i.e., their 2016 OSHA 300A Annual Summary data) by December 15, 2017.
Background about the Electronic Recordkeeping Rule
Historically, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer’s participation in its annual injury data survey, employers’ Injury and Illness Recordkeeping Logs and related forms remained strictly in-house. Employers kept the data and their OSHA logs in their HR or Safety Department office, posted them internally for employees to view for a couple of months each year, used the data themselves to make decisions about how to reduce risks of injuries and illnesses in their workplaces, and then stored the records in a cabinet or desk drawer for five years. Now, OSHA’s new rule requires hundreds of thousands of employers to proactively submit these historically private records to OSHA, which in turn may publish the data online for all the world to see.
Key Changes in OSHA’s New Recordkeeping Rule:
- Establishments with 20-249 employees in certain so-called “high hazard industries” must each year submit information from their 300A Annual Summaries only.
- All establishments with 250 or more employees (in industries not exempt from keeping injury logs) must submit to OSHA annually their injury and illness data from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries. In this first year of the rule, however, for 2016 injury data to be submitted in calendar year 2017, all employers, irrespective of size, are only required to submit 300A Annual Summary data.
- The submissions to OSHA must be made electronically, via a purportedly secure web portal.
- OSHA stated its original intent was to publish the data online, likely in a manner that is sortable, searchable, filterable, and as embarrassing to employers as possible. It is unclear whether the Trump Administration will publish the data, but the records may nonetheless be subject to Freedom of Information Act requests by plaintiffs’ attorneys, the media, union organizers, and competitors, to use the data in a variety of ways to harm employers.
Deadline to Submit Data – A Moving Target
The deadline to submit data has been a moving topic and source of uncertainty since the Trump Administration took the reins at OSHA. The original deadline to submit data this year was July 1st. On May 17, 2017, OSHA announced an indefinite suspension of the original July 1 deadline, and later published a Notice of Proposed Rulemaking on June 26, 2017 to extend the submission deadline to December 1, 2017. The proposed rule was finally cleared by OMB last week, but has not yet been published in the federal register.
However, an advance copy of the Federal Register publication shows yet another change to the data submission deadline. After reviewing comments to the proposed rule to push the deadline to December 1st, and consider delays launching the portal, getting OMB approval, and a brief stint when the portal was taken down because of a potential hack, OSHA tacked on two more weeks for a final data submission deadline of December 15, 2017.
Having passed on this last opportunity for a substantial delay to allow time to re-write the rule, it is time now to concede that the first data submission is going to happen. Continue reading