By Andrew Sommer, Megan Shaked, and Dan Deacon
As we have reviewed previously on the OSHA Defense Report, federal OSHA’s Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) requires small employers that operate in certain “high hazard industries” and all large employers to proactively submit their electronic injury and illness data to OSHA through a web portal – the Injury Tracking Application (“ITA”).
When federal OSHA promulgated the Rule in 2016, 
it built into the Rule a mandate that all State Plans adopt substantially identical requirements within six months after its publication. Implementation of the federal Rule, however, has been mired in difficulty from industry challenges, shifting guidance, informal changes, extended deadlines and mixed signals about the future of the rule as we transitioned from the Obama administration to the Trump administration. As a result, numerous State OSH programs failed to initially adopt the rule. After some headbutting with federal OSHA, almost all of the delinquent states, including California, have now implemented rules to “catch-up” to the federal OSHA data submission rule.
Delinquent State Plans Began Adopting E-Recordkeeping
In the midst of uncertainty surrounding federal OSHA’s E-Recordkeeping Rule, several State Plans delayed adopting state versions, even after OSHA made it clear that state plans needed to act soon. While the majority of State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule by the end of 2017, eight State Plans had not yet adopted the rule, including:
- California (Cal/OSHA);
- Washington (WA DLI, WISHA, or DOSH);
- Maryland (MOSH);
- Minnesota (MNOSHA);
- South Carolina (SC OSHA);
- Utah (UOSH);
- Wyoming (Wy OSHA); and
- Vermont (VOSHA)
Give the substantial number of State Plans that failed to comply with the Rule’s order, federal OSHA attempted to force covered employers in these State Plans to submit 300A data despite not being subject to the rule or federal OSHA’s jurisdiction. Specifically, on April 30, 2018, federal OSHA issued a Continue reading