By Eric J. Conn and Dan C. Deacon
In the final year of the Obama Administration, OSHA published a controversial amendment to its Injury and Illness Recordkeeping Rule known as the “Improve Tracking of Workplace Injuries and Illnesses” Rule. As published last year, the new Final Rule significantly changed employers’ obligations under OSHA’s recordkeeping scheme. Among other hotly contested provisions, the new rule would require employers, beginning July 1, 2017, to proactively submit their employee injury and illness recordkeeping data to OSHA, so that OSHA could publish the data for all the world to see.
In a dramatic, but not unexpected, move last week, OSHA suspended this controversial data submission requirement with no word on when – or whether – a new deadline would be set for the data submission.
Telltale signs that the new Administration was rethinking the data collection requirement, and especially the plan to publish data, were clear well before last week. OSHA stated at the time the rule was published in May 2016 that it would develop a secure portal into which employers would submit the data, and that the portal would be live by February 2017, well in advance of the July 1st data submission deadline. We understand the development of the database was completed, and learned that OSHA beta-tested the portal with the help of a few major national employers and employer organizations.
Nevertheless, Winter and Spring came and went with no public sign of the secure data portal, or update from OSHA about how precisely the database would function or when it would go live. Since we are so close to the July 1st submission deadline and still no database with which employers could begin to get familiar, it was not surprising that on May 17th, OSHA updated its website to officially announce a reprieve from the looming July 1st deadline, stating:
OSHA is not accepting electronic submissions of injury and illness logs at this time, and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. Updates will be posted to this webpage when they are available.
Our expectation is that the new Administration will be in no hurry to roll-out this new requirement, and in fact, may formally roll-back the new rule through notice and comment rulemaking to rescind at least this portion of the rule, and perhaps the equally controversial anti-retaliation elements of the Rule. Both parts of the rule were heavily opposed by industry during the rulemaking process, with the electronic data submission requirement drawing sharp criticism from employers that it marked a significant and inappropriate change to the agency’s longstanding recognition that injury and illness recordkeeping data was a no-fault program.
Historically, the vast majority of employers in the country maintained their OSHA 300 logs and related forms strictly in-house. The data would be turned over to a government agency only when OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer participate in its annual injury data survey. Employers kept the data and their OSHA logs in-house in their HR or Safety Department office; posted them internally for employees to view for a couple of months; used the data to make decisions about how to reduce risk in their workplaces; and then stored the records in a cabinet or desk drawer for five years. The new rule, on the other hand, required hundreds of thousands of employers to proactively submit these historically private records to OSHA in order that they be published online with the goal of shaming employers for injuries and illnesses, which may have no relationship whatsoever to an employer’s efforts to maintain a safe workplace.
As a reminder, and in the unlikely event the rule is implemented, here is a summary of the Data Submission Requirements of OSHA’s New Recordkeeping Rule:
- All establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit to OSHA annually their injury and illness data and information from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries.
- Establishments with 20-249 employees in certain so-called “high hazard industries” must each year submit information from their 300A Annual Summaries only.
- All of the submissions to OSHA must be made electronically, via a purportedly secure website.
- OSHA intended to publish the data online, likely in a manner that is sortable, searchable, filterable, and as user-friendly and embarrassing to employers as possible.
Note the data submission requirements are not corporate-wide. Rather, they are tied to individual “establishments.” OSHA’s Injury and Illness Recordkeeping regulations define establishment at 29 C.F.R. 1904.46 as
“a single physical location where business is conducted or where services or industrial operations are performed.”
Accordingly, the new data submission rule requires a location-by-location determination whether and what to report, based on the number of employees at peak employment at any point during the year, including temporary and part time employees, at each location, whether that number meets one of the two threshold reporting levels (i.e., 20-249 or 250+), and for the lower threshold, whether that establishment is in a covered high-hazard industry by NAICS code. The final rule, however, does permit an enterprise or corporate office to electronically submit data on behalf of multiple establishments if it has control over the relevant recordkeeping documentation, but the obligation for which establishments must be covered and the data itself are still establishment-specific.
Impact to Employers if the Rule is Implemented
Historically, both the Bureau of Labor Statistics and OSHA have conducted annual injury surveys in which the agencies direct a set of employers to submit the 300A Annual Summary data. The employers required to participate changed every year. OSHA’s new recordkeeping rule would quadruple the number of employers required to submit their injury and illness data directly to OSHA:
- from only approx. 35,000 large employers that submitted data annually to BLS or OSHA, to approx. 130,000 that will be required each year to submit injury data (detailed and summary data) as well as detailed incident reports;
- from approx. 150,000 smaller employers that submitted summary data annually, to approx. 500,000; and
- the most remarkable data point under the new Rule is the number of detailed incident reports OSHA will receive – presently, no employer must submit 301 Incident Reports to OSHA (except by request during an active OSHA inspection), but under the new final rule, large employers would have to proactively submit an anticipated approx. 1.3 million incident reports to OSHA each year.
OSHA has no ability to productively use this data. The sheer volume of data for such a small-budget agency, which will be subject to more budget cuts under the new Administration, will certainly not be useful in helping OSHA develop policy, target enforcement resources, or implement any program that advances safety and health.
That is why it has been so clear to Industry that the primary purpose of the data collection is not about improved tracking of workplace injuries and illnesses, as the name of the rule suggested, but rather, to advance the Obama Administration’s eight-year campaign to publicly shame employers, and to do so now with injury data that was never intended to be a safety performance metric. Providing this information in an easy-access public portal harms employers in a myriad of ways, including negatively impacting employee morale, employee recruiting and retention, bids for contracts, insurance coverage and rates, and access to business loans. It also would provide unions leverage for organizing campaigns or at the bargaining table.
Current Legal Challenge and the Future of the Rule
Amidst confusion and uncertainty surrounding the electronic data submission, there are also pending cases in federal courts challenging the data submission and anti-retaliation requirements. The National Association of Home Builders and other industry groups filed a lawsuit against OSHA on January 4, 2016 in the U.S. District Court for the Western District of Oklahoma, arguing OSHA’s proposed public database violates employers’ First and Fifth Amendment rights, is arbitrary, capricious and otherwise contrary to law, and oversteps OSHA’s authority. National Ass’n of Home Builders et al. v. Perez et al., No. 5:17-cv-00009 (W.D. Okla. Jan. 4, 2017).
On March 8, 2017, the AFL-CIO and the United Steelworkers filed a Motion to Intervene to defend the rule. Additionally, on March 21, 2017, Public Citizen Health Research Group, American Public Health Association, Council of State and Territorial Epidemiologists, and Center for Media and Democracy filed a Motion to Intervene. One day later, on March 22, 2017, OSHA filed a Motion to Stay the case stating the Plaintiffs needed additional time to take a position on the motion. On April 5, 2017, the Judge granted OSHA’s motion and stayed the case for 60-days, and extended the Plaintiffs’ and Government’s joint proposed summary judgment briefing schedule to June 9, 2017. While it remains to be seen what will happen to this rule in court, employers have continued to strongly oppose the final rule.
Given that new Secretary of Labor Alexander Acosta has only recently assumed his position, we anticipate that further judicial activity or administrative action to unravel or modify the rule may be delayed until Secretary Acosta’s new team at OSHA is in place.
For more information about OSHA’s E-Recordkeeping and Anti-Retaliation Rule, check out Conn Maciel Carey’s recent webinar: “Get the Record Straight: OSHA’s E-Recordkeeping and Anti-Retaliation Rule.”