OSHA’s E-Recordkeeping Rule has been challenged and criticized by stakeholders since its inception, with expectations that OSHA under a Trump Administration would significantly narrow or even rescind it. Despite issuing an amended rule, the Trump Administration did very little to narrow its impact on employers and nothing to alleviate concerns about the collection and publication of injury data.
OSHA is also actively enforcing both the recordkeeping and anti-retaliation elements of the rule, and OSHA even promulgated a site-specific targeting program (SST-16 Plan) based on employer 300A data collected under the E-Recordkeeping Rule. Even more enforcement of the rule is expected in 2021 as the Biden Administration takes the reins, and a new site-specific targeting plan has been announced. The Biden Administration is also highly likely to amend the Rule again to restore OSHA’s original intent to collect 300 log and 301 incident report level data.
Our national OSHA Practice at Conn Maciel Carey has been advocating hard to OSHA about COVID-19 related recordkeeping issues. One of those issues has been the recordability of adverse reactions to the COVID-19 vaccine. Specifically, if we want to encourage more workers to get vaccinated, and to encourage more employers to mandate, incentivize, or encourage employees to get vaccinated, OSHA should not require employers to record adverse reactions to the vaccines as days away illnesses on their 300 Logs.
Many people have experienced something of a flu-like reaction to the COVID-19 vaccines, and often have required at least a day away from work the day after the second dose. OSHA had previously indicated that many of these reactions would be recordable on the OSHA 300 Log, especially if the employer required or strongly encouraged the vaccine, or if the circumstances of the job made vaccination something of a de facto requirement.
In mid-April, OSHA clarified its position in a couple of FAQs about the recordability of adverse reactions to the vaccine in a couple of FAQs on its COVID-19 page. At that time, OSHA said: Continue reading →
Confirmed by a positive laboratory test of a respiratory specimen; and
“More likely than not” the result of a workplace exposure, based on reasonably available evidence, and the absence of any alternative (non-work) explanation for the employee’s illness.
Cal/OSHA’s May 27th guidance, however, breaks from both of those key requirements for COVID-19 recordkeeping, rejecting the need for a confirmed case and flipping the burden of establishing work-relatedness on its head, establishing instead a presumption of work-related if any workplace exposure can be identified, even if the cause of the illness is just as likely to be attributable to a non-work exposure.
Aside from being bad policy that will result in many illnesses being recorded on 300 Logs only in California that were not actually COVID-19 cases, and/or that were not caused by exposures in the workplace, Cal/OSHA’s unique COVID-19 recording criteria are not permitted by law.
More COVID-19 cases on your logs can create significant risk of liability. For example, there is no doubt an avalanche of wrongful death and personal injury suits waiting around the corner, and while recording an illness is not an admission of wrong-doing, it is an admission that the illness was likely spread in your workplace. Plaintiffs’ attorneys will make hay of that to show your exposure control efforts were insufficient, or to show that the illnesses experienced by their clients (customers, contractors, family members of employees, and others whose suits would not be barred by workers’ compensation exclusivity) likely were also contracted in your workplace or because of your workplace. And of course, more illnesses having to be recorded also creates more potential for Cal/OSHA citations for failure to record or failure to record timely or accurately.
The Coalition for Uniformity in COVID-19 Recordkeeping
Conn Maciel Carey organized and represents the Coalition for Uniformity in COVID-19 Recordkeeping, which is composed of a broad array of California employers impacted by Cal/OSHA’s COVID-19 recordkeeping requirements. Continue reading →
There are myriad workplace safety and health implications of the COVID-19 pandemic, but one OSHA regulatory obligation about which we have received countless questions the past three months is the requirement to record on an OSHA 300 Log and/or pick up the phone and report to OSHA work-related cases of COVID-19. This article explains the circumstances the OSHA recordkeeping and reporting obligations related to employee COVID-19 cases.
“An injury or illness occurring in the work environment that falls under one of the following exceptions is not work-related, and therefore is not recordable…. The illness is the common cold or flu.”
The rationale for the exemption is that the spread of the cold and flu is so pervasive and potential exposures are ubiquitous within and outside the workplace, so it can be nearly impossible to identify the specific source of infection.
Despite great personal sacrifice around the country in the form of mass self-quarantine, the scale of infection of COVID-19 continues to spread like the flu and common cold, with even more dire consequences. Nevertheless, OSHA has repeatedly made clear that COVID-19 is not subject to the cold/flu recordkeeping exemption:
“While 29 CFR 1904.5(b)(2)(viii) exempts recording of the common cold and flu, COVID-19 is a recordable illness when a worker is infected on the job.”
OSHA has explained that the cold and flu recordkeeping exemption is not just an OSHA policy or enforcement philosophy. Rather, it is a part of the regulation itself that went through APA notice-and-comment rulemaking. And the scientific reality is, COVID-19 is not the cold or flu. It is a different virus. So without another rulemaking (that history suggests would take longer than it will to eradicate this illness), OSHA cannot just declare this serious illness to be exempt from recordkeeping and reporting requirements.
Indeed, over a series of guidance documents in April and May, OSHA has doubled-down on its decision that employers must spend time determining whether cases of COVID-19 are more likely than not work-related.
Determine Recordability of COVID-19 Cases
Consistent across all of OSHA’s COVID-19 guidance has been the basic structure for evaluating whether an employee’s COVID-19 case is recordable. Employers will only be responsible for recording a case of COVID-19 if it meets the following criteria: Continue reading →
This is your annual reminder about the important annual February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS code is for the set of low hazard industries exempted from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).
This February 1 requirement to prepare, certify and post 300A forms should not be confused with OSHA’s new Electronic Recordkeeping Rule. The February 1st deadline is only about the internal posting of 300A data for your employees’ eyes. The E-Recordkeeping Rule, on the other hand, is a new requirement for certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through a web portal. Depending on how OSHA resolves an internal policy debate and the outcome of legal challenges from labor groups, that data may also be shared publicly.
By February 1st every year, employers must:
Review their OSHA 300 Log(s);
Verify the entries on the 300 Log are complete and accurate;
Correct any deficiencies identified on the 300 Log;
Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form; and
Certify the accuracy of the 300 Log and the 300A Summary Form.
The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.
Four Common 300A Mistakes that Employers Make
We see employers make the following four common mistakes related to this annual injury and illness Recordkeeping duty:
Not having a management representative with high enough status within the company “certify” the 300A;
Not posting a 300A for years in which there were no recordable injuries;
Not maintaining a copy of the certified version of the 300A form; and
Not updating prior years’ 300 Logs based on newly discovered information about previously unrecorded injuries or changes to injuries that were previously recorded.
Certifying the 300 Log and 300A Annual Summary
The 300 Log and the 300A Annual Summary Form are required to be “certified” by a “company executive.” Specifically what the company executives are certifying is that they:
Personally examined the 300A Annual Summary Form;
Personally examined the OSHA 300 Log from which the 300A Annual Summary was developed; and
Reasonably believe, based on their knowledge of their companies’ recordkeeping processes that the 300A Annual Summary Form is correct and complete.
A common mistake employers make is to have a management representative sign the 300A Form who is not at a senior enough level in the company to constitute a “company executive.” As set forth in 1904.32(b)(4), company executives include only the following individuals:
An owner of the company (only if the company is a sole proprietorship or partnership);
An officer of the corporation;
The highest ranking company official working at the establishment; or
The immediate supervisor of the highest ranking company official working at the establishment.
Posting the 300A Annual Summary
After certifying the 300A, OSHA’s Recordkeeping regulations require employers to post the certified copy of the 300A Summary Form in the location at the workplace where employee notices are usually posted. The 300A must remain posted there for three months, through April 30th.
Another common mistake employers make is to not prepare or post a 300A Form in those years during which there were no recordable injuries or illnesses at the establishment. Even when there have been no recordable injuries, OSHA regulations still require employers to complete the 300A form, entering zeroes into each column total, and to post the 300A just the same.
Maintaining the 300A for Five Years
After the certified 300A Annual Summaries have been posted between February 1st and April 30th, employers may take down the 300A Form, but must maintain for five years following the end of the prior calendar year at the facility covered by the form or at a central location, a copy of:
The underlying OSHA 300 Log;
The certified 300A Annual Summary Form; and
Any corresponding 301 Incident Report forms.
In this technology era, many employers have transitioned to using electronic systems to prepare and store injury and illness recordkeeping forms. As a result, another common mistake employers make is to keep only the electronic version of the 300A, and not the version that was printed, “certified,” typically by a handwritten signature, and posted at the facility. Accordingly, those employers have no effective way to demonstrate to OSHA during an inspection or enforcement action that the 300A had been certified.
Finally, another common mistake employers make is to put away old 300 Logs and never look back, even if new information comes to light about injuries recorded on those logs. However, OSHA’s Recordkeeping regulations require employers during the five year retention period to update OSHA 300 Logs with newly discovered recordable injuries or illnesses, or to correct previously recorded injuries and illnesses to reflect changes that have occurred in the classification or other details. This requirement applies only to the 300 Logs; i.e., technically there is no duty to update 300A Forms or OSHA 301 Incident Reports.
Not to be Confused with Electronic Recordkeeping
As mentioned above, the February 1st deadline is separate and apart from the electronic data submission requirement of OSHA’s new Electronic Recordkeeping Rule. The deadline in 2018 for employers to electronically share data from their 2017 300A forms with OSHA is currently set for July 1, 2018, but the rule itself may change, and so too may that July deadline. OSHA has signaled through status reports in a federal district court proceeding and in its semi-annual regulatory agenda that it is working on a Notice of Proposed Rulemaking to reopen the E-Recordkeeping Rule and change it or rescind it. The most likely changes we predict are limiting the data that will be required to be submitted to only 300A Annual Summary data, rather than the full panoply of recordkeeping data, regardless of the size of the employer, and perhaps some other changes to limit the set of employers covered by the rule. Here are a few articles we have written about OSHA’s E-Recordkeeping Rule.
Accordingly, although the web portal is now accepting 2017 data, we encourage employers to wait until close to the July deadline to submit data, because the rule itself may change and the deadline may be pushed to allow more time for OSHA to change the rule.