By Eric J. Conn, Chair of CMC’s National OSHA Practice

On March 30^th, OSHA published a proposal to dramatically expand the requirements of its Improve Tracking of Workplace Injuries and Illnesses Rule (aka 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.

In short, the proposed changes to the E-Recordkeeping Rule would:

1. Replace the current requirement for all workplaces with 250+ employees to annually submit to OSHA’s electronic Injury Tracking Application the data from their 300A Annual Summary of work-related injuries, with a new requirement for workplaces with 100+ employees in the “high hazard industries” listed in new Appendix B to submit the full panoply of OSHA recordkeeping records – i.e., OSHA Forms 300 (the OSHA Log), 301 (detailed incident reports for each recorded injury), and the 300A Annual Summary;
2. Require workplaces with 20+ employees in another larger list of so-called “high-hazard industries” (new Appendix A) to submit the data from their 300As; and
3. Compel all submitting employers to include their proper company name with the electronic data submissions.

That Federal Register Notice set the deadline for stakeholders to submit comments for Tuesday, May 31 — the day after Memorial Day and one week after the deadline to submit post-hearing comments about OSHA’s proposed Permanent COVID-19 Standard for Healthcare.  Because of that crowded schedule and the importance of the proposed changes to the E-Recordkeeping Rule, last week, on behalf of Conn Maciel Carey’s Employers E-Recordkeeping Rulemaking Coalition, we prepared and filed a Letter to OSHA Requesting an Extension of the Comment Period. We explained in the request:

“The availability of time and resources to dedicate to these comments is strained by the timing of the comment period. First, this comment period has overlapped substantially with the comment period, public hearing schedule, and post–hearing schedule for OSHA’s work on a Permanent COVID–19 Standard for the Healthcare Industry, which impacts many of the same industries and employers set to be affected by the proposed amended E–Recordkeeping Rule. Those employers have dedicated time and resources to participate in that COVID–19 rulemaking, and it is generally the same company resources (internal safety and health and/or regulatory affairs professionals), whose attention is needed for this E–Recordkeeping rulemaking.  Second, the current comment submission deadline is set for the day after the Memorial Day holiday weekend (May 31, 2022) and the end of the fiscal year for many companies, which have also occupied their resources.  An extension of this comment period would enable employers to refocus their resources towards this rulemaking so that we may provide more useful comments for the Agency’s consideration.”

On Tuesday of this week, we got word from OSHA that this Federal Register Notice would appear in yesterday’s Federal Register, in which OSHA granted the request, extending the comment deadline by thirty days to June 30^th.  This extension provides our flat fee-based rulemaking coalition of employers and trade groups a little more runway to prepare a strong set of comments for submission.

We held a kickoff call for the Coalition earlier this month.  If you were unable to attend, we are pleased to share links to the recording and a copy of the slides that we presented.  There is still time to join the rulemaking coalition if your organization would like to have a voice in this process.

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 numerous COVID-19 cases even when work-relatedness is uncertain.
   2. OSHA has no genuine need and cannot make meaningful use of the more detailed data set to be collected, yet it will create an extraordinary burden for employers to submit.
   3. OSHA is not capable of protecting employees’ confidential personal and medical information that will be collected with OSHA 300 Logs and 301 Incident Reports.
   4. The definition of “high hazard industry” is overly inclusive — covering thousands of small employers in industries with essentially average DART rates.
   5. Other important issues our coalition members have been identifying in our planning and strategy sessions.

Because of the extension of the comment period, there is more time for organizations to get involved in the Coalition, but we are working away at draft comments right now, so let us know right away if your organization is interested.  We are happy to jump on a one-on-one call to talk through the NPRM, our plans and strategies for the rulemaking, the fee to participate, or anything else about this rulemaking.