By Eric J. Conn and Dan C. Deacon

OSHA’s Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) requires employers of  certain sizes that fall into certain categories to proactively submit electronic injury and illnesses data to OSHA through its new web portal – the “Injury Tracking Application.”  The new rule dramatically changes the responsibilities and impacts of OSHA’s long-standing injury and illness recordkeeping program.

Historically, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer to participate in its annual injury data survey, employers’ OSHA 300 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, used the data themselves to make decisions about how to reduce risk of injury and illness 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

1. 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.
2. Establishments with 20-249 employees in certain so-called “high hazard industries” must each year submit information from their 300A Annual Summaries only.
3. All of the submissions to OSHA must be made electronically, via a purportedly secure website.
4. 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.

Note however, in this first year of the rule, for the upcoming data submission of 2016 injury data to be made in calendar year 2017, all employers, irrespective of size, are only required to submit 300A Annual Summary data.

Deadline to Submit Data – A Moving Target

The deadline to submit data has been a topic of discussion, and there remains some uncertainty whether employers will be required to electronically submit injury and illness data.  On May 17, 2017, OSHA announced an indefinite suspension of the original July 1, 2017 deadline to submit injury and illness recordkeeping data through the electronic portal.  OSHA later published a Notice of Proposed Rulemaking on June 26, 2017 to extend the submission deadline to December 1, 2017.  Five days later, on August 1, 2017, OSHA launched the online ITA portal to receive recordkeeping data.  Although the proposed rule to extend the deadline has not been finalized, fed OSHA has expressed that it is not requiring employers to submit data until the December 1 deadline.

The rule and/or the deadline to submit data could be further impacted by another rulemaking OSHA is expected to initiate to revisit the rule, by the legal challenges already filed against the rule, or by the Congressional Appropriations process.  Specifically, on September 14, 2017, the House Appropriations Committee just advanced a Department of Labor fiscal 2018 appropriations measure with a rider that precludes OSHA from spending any funds to implement or enforce the E-Recordkeeping Rule (H.R. 3354 – Gibbs Amendment).  For that to have any effect, the Senate would have to adopt the same rider, so we will have to continue to wait and see on that front.

Finally, the deadlines to submit may vary depending on the state where the individual workplace resides, as discussed below.

Implementation of E-Recordkeeping in State Plan States

One other area of uncertainty relates to State Plan States.  The data submission requirements under this rule are not corporate-wide.  Rather, they are tied to individual “establishments,” which is defined 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 about whether and what to report, based on the number of employees at each particular location (peak employment at any point during the year, including temporary and part time employees), whether that number meets one of the two threshold levels for reporting (i.e., 20 – 249 or 250+), and for the lower threshold, whether that establishment is in a covered high-hazard industry by NAICS code, and whether the state where the establishment is located has implemented the E-Recordkeeping Rule yet.

That last analysis depends on whether the establishment is located in a state that is covered by federal OSHA jurisdiction or is a state that operates its own federal OSHA-approved State OSH Program.  For establishments in fed OSHA states, the data from their 2016 300A reports are due by December 1st, and must be submitted electronically in fed OSHA’s ITA portal.  However, employers in state plan states may not have a data submission requirement yet.

The new rule requires all state-plan states to adopt the e-recordkeeping requirements, but fed OSHA has granted states some leeway in when they must start implementing the rule and how they may require submission of the data.  Because the state plan states have their own legislative or rulemaking processes, fed OSHA cannot require them to snap their fingers and instantly adopt a new fed OSHA rule.  OSHA has also explained that states may choose to allow employers with establishments in their state to use the federal OSHA ITA portal or to develop their own portal or process for data collection.

To date, several state plans have finalized OSHA’s E-Recordkeeping Rule, but several others have not, and some have not even initiated the legislative or rulemaking process yet.  For those states that do not adopt and finalize the e-recordkeeping requirements by December 1st, employers will not be required to submit data in those states.

Although it is unlikely that any state will choose to create an online portal to submit data, states do have the option to provide their own data collection sites.  OSHA’s website currently states that it “will provide further information and guidance as the States decide how to implement these new reporting requirements.”  Based on our research, many state plan states have already adopted OSHA’s E-Recordkeeping Rule and all of those have opted to use the federal portal.  However, many other state plan states have not even begun the process to adopt the Rule.

The Table below provides an overview of the current status of the E-Recordkeeping Rule in all of the State OSH Programs, and whether, when and how employers with establishments in state plan states are required to submit electronic injury and illness data, as of now:

NOTE: Click HERE for a May 2018 status update about State Plan implementation of the E-Recordkeeping Rule, and a controversy about whether employers in the delinquent states need to submit their data to fed OSHA.

For more information about OSHA’s Electronic Recordkeeping Rule, check out the following resources:

• Conn Maciel Carey’s most recent webinar regarding OSHA’s E-Recordkeeping Rule;
• E-Recordkeeping Guide for Employers prepared by Conn Maciel Carey in partnership with Intelex; and
• Other blog articles from Conn Maciel Carey’s OSHA Defense Report blog regarding OSHA’s E-Recordkeeping rule

Conn Maciel Carey’s national OSHA Practice Group will continue to closely follow developments at the federal and state level, so look out for updates on our blog or contact us directly.