By Eric J. Conn and Daniel C. Deacon
The White House has given final sign-off on OSHA’s Amended Regulation — Improved Tracking of Workplace Injuries and Illnesses (aka the Electronic Recordkeeping or E-Recordkeeping Rule). The Preamble and the Final Rule have been sent to the Federal Register for official publication. The rule package will appear in the Federal Register this Friday (July 21, 2023), but in the meantime, the Administration has posted a pre-publication version of the final rule package. So we now have the final regulatory text, OSHA’s rationale for its final rulemaking decisions, and its analysis of the stakeholder comments about the proposed amended rule. Here’s what we know.
Details About the Final Rule
The final amended E-Recordkeeping Rule will take effect on January 1, 2024. The regulatory text and the Preamble make clear that because this final rule becomes effective before the next E-Recordkeeping submission deadline in 2024, OSHA intends for March 2, 2024 to be the first submission deadline for the new information required to be submitted under this rule.
Unfortunately, OSHA has included each of the proposed changes in the final rule, and even worse, it added in an element that goes beyond what had originally been proposed. As a reminder, the proposed amended rule published by OSHA in March 2022 included three key revisions: Continue reading
By Eric J. Conn, Lindsay A. DiSalvo, and Dan C. Deacon
We have an update to share about OSHA’s rulemaking to expand its regulation to “Improve Tracking of Workplace Injuries and Illnesses” (known better as the Electronic Recordkeeping or E-Recordkeeping Rule). Late last week, OSHA delivered to the White House’s Office of Management and Budget (OMB) a proposed Final (Amended) E-Recordkeeping Rule for review by the Administration’s economists and policy experts. OMB’s website reflects that, as of April 7, 2023, OMB:
- Has received a proposed E-Recordkeeping Rule from OSHA; and
- The rule is in the “Final Rule” stage.
As we indicated a few weeks ago, OSHA’s latest target date to issue the rule is June of this year, and getting the proposed final rule to OMB last week lines up well with that target. The submission of the proposed rule to OMB means OSHA is at the goal line; just one step away from finalizing a rule that more closely resembles the agency’s original intent and broad scope of the E-Recordkeeping Rule when it was promulgated in 2016 under the Obama Administration.
The original E-Recordkeeping Rule would have had larger employers submitting to OSHA annually the data from their full panoply of injury and illness recordkeeping forms (the 300 Logs, 301 incident reports, and 300A Annual Summaries), and smaller employers in certain “high hazard industries” submitting only the 300A Annual Summary data. Before ever collecting the more detailed level data from 300 Logs and 301 Incident Reports, former President Trump’s OSHA rolled back the more onerous requirements, such that no matter the employer’s size, if you were covered by the rule, you submitted only 300A Annual Summary date.
OSHA was sued by organizations representing labor alleging that Continue reading
On September 13, 2022, Lindsay A. DiSalvo and Ashley D. Mitchell presented a webinar regarding Important Nuances of OSHA’s Recordkeeping, Reporting, and E-Recordkeeping Rules.
Although OSHA’s injury and illness recordkeeping and reporting rules may seem clear on their face, there are many nuances in the applicable standards that can create challenges to accurately making and maintaining those required records and reports. And the accuracy of injury and illness records could be becoming even more essential in light of the changes OSHA has proposed to the current e-recordkeeping rule, which would increase the availability and use of injury and illness data.
Already, e-recordkeeping data is collected by OSHA and used in developing and executing its Site-Specific Targeting (“SST”) Program based on an employer’s 300A Summary. Per the changes proposed in the current rulemaking effort, OSHA intends to expand who is required to submit recordkeeping data, what data is collected, and what data is shared with the public. This would result in more employers’ injury and illness data being under the microscope and incorporated into OSHA’s enforcement efforts. Indeed, as COVID-19 recordkeeping continues to drive up DART rates for a number of employers due to the need for COVID-19 positive employees to isolate, more may be pulled in OSHA’s SST Program. Thus, it is important for employers to understand the changes possibly to come in e-recordkeeping, as well as what those changes could mean in the context of evaluating and recording/reporting injuries and illnesses.
Participants in this webinar learned about: Continue reading
By Eric J. Conn, Chair of Conn Maciel Carey’s national OSHA Practice
On March 30th, OSHA published a new proposed rule to amend and dramatically expand the requirements of its “Improve Tracking of Workplace Injuries and Illnesses Rule” (aka, the E-Recordkeeping Rule). We digested the tortured history of OSHA’s E-Recordkeeping Rule, the proposed amendments OSHA introduced this Spring, and the implications of the proposed changes in this article.
Conn Maciel Carey’s OSHA Team organized a flat fee-based E-Recordkeeping Rulemaking Coalition of employers and trade groups to collaborate to submit public comments on this proposal and otherwise participate in the rulemaking process to advocate for the most manageable possible E-Recordkeeping Rule. The first major step taken by our Employers E-Recordkeeping Coalition was to submit a comprehensive set of written comments to OSHA’s rulemaking record on June 30th. Here is a copy of our as-filed comments.
To summarize, we addressed in the comments that: Continue reading
By Eric J. Conn, Chair, Conn Maciel Carey’s national OSHA Practice
In the June/July issue of Tank Storage Magazine, Eric J. Conn, Founding Partner and Chair of Conn Maciel Carey LLP’s OSHA • Workplace Safety Practice Group, looks at recent changes in OSHA’s regulatory policies in the article, “OSHA’S Top Regulatory Priorities…Other than COVID-19.”
Here is a summary of his observations.
The US Occupational Safety and Health Administration (OSHA) has not slowed it rulemaking activities despite the attention COVID-19 has demanded over the past two years. In just the past six months, OSHA has:
- Published a notice of proposed regulation to expand its Electronic Recordkeeping Rule;
- Initiated an enforcement National Emphasis Program to address Heat Illness; and
- Launched rulemaking for an Outdoor and Indoor Heat Illness Prevention standard.
OSHA’S Rulemaking to Expand the E-Recordkeeping Rule
OSHA’s Standard To Improve Tracking of Workplace Injuries and Illnesses (aka, the E-Recordkeeping Rule) has experienced Continue reading