BREAKING NEWS: OSHA Issues Final Amended Rule Scaling Back Electronic Injury Recordkeeping

By Eric J. Conn and Dan C. Deacon

Yesterday OSHA announced and today OSHA officially published its Final Rule amending its Electronic Recordkeeping Rule.  After years of advocacy for change to (or to rescind) OSHA’s controversial Obama-era rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule), and a transition to the de-regulatory platform of the Trump Administration, OSHA has finally approved changes (hopefully just the first step) to pare down the E-Recordkeeping Rule. 

On July 30, 2018, OSHA announced a Notice of Proposed Rulemaking to amend the E-Recordkeeping Rule.  83 Fed. Reg. 36494 (July 30, 2018).  The proposed Rule included only one significant change to the current regulation.  Specifically, the proposal sought to rescind the requirement for the largest employers — those with individual establishments with 250 or more employees — to annually submit to OSHA’s online web portal the data from their 300 logs and 301 detailed incident reports of recorded injuries and illnesses.

The proposal left intact the requirement for these large employers and many more smaller employers to annually submit 300A annual summary data.  Perhaps even more concerning to employers than leaving in place a portion of the electronic data submission requirements, the final rule does not disturb in any manner the controversial and duplicative “anti-retaliation” provisions, or the interpretations of those provisions included in the Preamble to the 2016 Final Rule.  These are the provisions that endeavored to restrict employers’ authority to discipline employees for late injury reporting or for safety violations, as well as limit employer’s ability to perform post-incident drug testing and to provide safety incentives.  For more information about these elements of the E-Recordkeeping Rule, check out our previous blog article regarding the E-Recordkeeping Anti-Retaliation provisions.

Tortured History and Difficulties Implementing E-Recordkeeping

Historically, unless 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’ injury and illness recordkeeping data was maintained internally.  In a major policy shift, President Obama’s OSHA Continue reading