On March 30^th, OSHA published a new proposed rule to amend and dramatically expand the requirements of its Improve Tracking of Workplace Injuries and Illnesses Rule (i.e., the E-Recordkeeping Rule).  Read our full article here for more information about the history of E-Recordkeeping, the new proposed amendments to the E-Recordkeeping Rule, and the implications of the proposed changes.

As we have had to do too often the last couple of years, Conn Maciel Carey’s OSHA Team is organizing a flat fee-based rulemaking coalition of employers and trade groups to collaborate to work on submitting public comments on this new proposal and otherwise participate in the rulemaking process to advocate for the most manageable possible E-Recordkeeping Rule.

We held a kickoff call for the coalition earlier this week.  If you were unable to attend, we are pleased to share links to the recording and a copy of the slides that we used. We expect to have a follow up virtual meeting in May to solicit detailed input from coalition participants and review our advocacy strategy.

There is still time to join our coalition if your organization would like to partner with us on this rulemaking.  OSHA requested public comments to be submitted by May 31, 2022.

We expect to address, among other important concerns, that:

1. 1. OSHA will use this electronic data for enforcement targeting, even though the criteria for recording illness and injuries neither assumes nor requires any correlation between the injury and regulatory non-compliance or any employer fault.  This is even more important now, because some employers are recording hundreds of COVID-19 cases even when work-relatedness is uncertain.
   2. Much of the detailed data is unnecessary to OSHA and will create significant burden for employers.
   3. OSHA is not capable of protecting employees’ confidential personal and medical information.  Electronic collection of Forms 300 and 301, and making the data publicly available on a searchable database will unnecessarily expose the personal information of employees to both intentional and inadvertent disclosure.
   4. The collected data should not be published along with employer-identifying information (i.e., precisely how BLS handles the injury data it has collected for decades).
   5. Further recalibrate the definition of “high hazard industry” such that that the rule will not cover thousands of small employers in industries with essentially average DART rates (i.e., set the trigger for “high hazard” at the same level that OSHA has always used for its SST program.
   6. Eliminate the 25 -100 employee data collection category.
   7. Other important issues for which we need more industry input.

Let us know as soon as you are able whether your organization is in, or if you remain interested but still need to run some traps internally.  Let us know if a one-on-one call would be helpful to talk through the NPRM, our plans and strategies for the rulemaking, the fee to participate, or anything else about this rulemaking.