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.
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:
In short, the proposed changes to the E-Recordkeeping Rule would:
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;
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
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. Continue reading →
OSHA’s controversial E-Recordkeeping Rule has been challenged and criticized by stakeholders since its inception, and finally, in January 2019, the Trump Administration unveiled its Final Amended Rule. However, the Amended Rule did not go nearly as far as many expected or hoped. Indeed, the Amended Rule eliminated only the requirement for large establishments to submit 300/301 data, but did nothing to alleviate the data submission burden on smaller employers, and did not address the controversial anti-retaliation provisions (e.g., limits to post-injury drug testing and safety incentive programs) at all.
Not to be confused with E-Recordkeeping, OSHA’s Significant Injury and Fatality Reporting Rule has created significant new interactions between employers and OSHA since its update in 2015. Many employers still wrestle with the nuances of when and how to report significant injuries involving hospitalizations, amputations, and fatalities to OSHA. In particular, employers are struggling to determine what constitutes a reportable hospitalization and amputation.
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 →
On May 11, 2016, OSHA published its Final Rule for injury and illness recordkeeping electronic data submissions — what we refer to as the E-Recordkeeping Rule. The rule fundamentally changed OSHA’s long-standing injury and illness recordkeeping program by requiring injury and illness data to be proactively shared with OSHA, which intended originally (and still, but after some delay) to publicize the data for all the world to see. The 2016 E-Recordkeeping Rule required:
All establishments with 250 or more employees in industries covered by the recordkeeping regulation to submit to OSHA annually their injury and illness data and information from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries.
Establishments with 20-249 employees in select “high hazard industries” to annually submit information from their 300A Annual Summaries only.
In addition to the electronic data submission requirements, the E-Recordkeeping also introduced (out of left field) some new anti-retaliation restrictions that were intended to eliminate employer policies that may discourage employees from reporting injuries, purportedly for the nefarious purpose of reducing the numbers of injuries the employer has to share with OSHA. These anti-retaliation provisions included very generic, vague language, but through a series of memos, interpretation letters, and other guidance, we have learned that the anti-retaliation elements primarily restrict employers’ use of safety incentive programs (prizes for injury-free work), post-incident drug testing, executive compensation and bonuses, and post-incident discipline. Although none of those terms even appears in the 2016 regulatory text, OSHA included a panoply of new restrictions impacting very common workplace policies and programs in the Preamble to the Final Rule. For more information about the controversial anti-retaliation elements of the E-Recordkeeping Rule, check out our previous blog post.
Since promulgation in May 2016, implementation of all aspects of the Rule has been mired in difficulty. Continue reading →
When fed OSHA promulgated the Final Rule to “Improve Tracking of Workplace Injuries and Illnesses” (aka the E-Recordkeeping Rule) in 2016, it built into the Rule a mandate that all State Plans adopt substantially identical requirements to the final E-Recordkeeping Rule within six months after its publication. However, because State Plans all have their own legislative or rulemaking processes, they cannot simply snap their fingers and instantly adopt a new Rule even if required to do so by fed OSHA. Also importantly, the State Plans, as well as all employers in the regulated community, were getting mixed signals about the future of the E-Recordkeeping Rule from fed OSHA under the new Trump Administration.
Accordingly, although most of the 20+ State Plans acted promptly to promulgate their own version of the E-Recordkeeping rule, leading up to the first injury data submission deadline last year, several State OSH Plans had not yet adopted their own version of an E-Recordkeeping Rule. Specifically, as of the end of 2017, these eight State Plans had not yet adopted (and some, like California, had not even started the process to adopt) an E-Recordkeeping Rule:
Washington (WA DLI, WISHA, or DOSH);
South Carolina (SC OSHA);
Wyoming (WY OSHA); and
Given the uncertainty of the fate of the E-Recordkeeping Rule after the transition to the Trump Administration and OSHA’s announcement that it would soon issue a Notice of Proposed Rulemaking to revisit the E-Recordkeeping Rule, each of these State Plans except for Vermont OSHA continued to delay adopting the Rule even as we approached the second data submission deadline of July 2018. And that is when fed OSHA started to speak up.
OSHA’s April 30, 2018 Press Release
On April 30, 2018, OSHA issued a press release announcing that employers in all State Plan States (not the State Plans themselves) must implement OHSA’s E-Recordkeeping Rule. In the press release, OSHA states that it had determined that:
Section 18(c)(7) of the Occupational Safety and Health (OSH) Act, and relevant OSHA regulations pertaining to State Plans, require all affected employers to submit injury and illness data in the ITA, “even if the employer is covered by a State Plan that has not completed adoption of their own state rule.”
State Plan State Responses
The remaining seven State Plan States provided conflicting responses to fed OSHA’s directive Continue reading →
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 taken a step (hopefully just the first step) to pare down the E-Recordkeeping Rule. Specifically, OSHA announced a Notice of Proposed Rulemaking to amend the E-Recordkeeping Rule. While the proposed change will undoubtedly be welcomed by Industry, the scope of the proposed change, however, does not address most of the fundamental concerns employers have repeatedly raised about the controversial rule.
The Proposed Rule includes only one significant change to the current regulation. The proposal seeks to eliminate the requirement for the largest employers, those with establishments with 250 or more employees, to annually submit to OSHA the data from their 300 logs and 301 detailed incident reports of recorded injuries and illnesses via OSHA’s new online web portal. However, the proposal leaves intact the concerning requirements for these large employers and many smaller employers to annually submit 300A annual summary data via OSHA’s electronic portal.
Perhaps even more concerning to employers than leaving in place a portion of the electronic data submission requirements, the proposed rule does not disturb in any manner the highly controversial “anti-retaliation” provisions, or the interpretations of those provisions included in the 2016 final rule preamble. In addition to establishing requirements for electronic submission of injury and illness recordkeeping data, the 2016 E-Recordkeeping Rule endeavored to restrict employers’ rights to adopt employee injury reporting policies and expanded OSHA’s enforcement authority by introducing a vague new set of “anti-retaliation” provisions.
The December 15, 2017 deadline for large employers and small employers in certain “high hazard industries” to submit injury and illness data to OSHA is less than a month away. We have been tracking closely the Trump Administration’s treatment of OSHA’s new E-Recordkeeping and Anti-Retaliation Rule, and while there have been plenty of signals that this rule is due for an overhaul, or even possibly to be rescinded, it appears that the initial data submission deadline of December 15th is going to stand.
Therefore, if employers have not already done so, they should immediately evaluate whether the rule applies to any or all of their workplaces, get familiar with and set up an account in OSHA’s Injury Tracking Application (the portal that will receive the injury data), and submit covered injury data (i.e., their 2016 OSHA 300A Annual Summary data) by December 15, 2017.
Background about the Electronic Recordkeeping Rule
Historically, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer’s participation in its annual injury data survey, employers’ Injury and Illness Recordkeeping Logs and related forms remained strictly in-house. Employers kept the data and their OSHA logs in their HR or Safety Department office, posted them internally for employees to view for a couple of months each year, used the data themselves to make decisions about how to reduce risks of injuries and illnesses in their workplaces, and then stored the records in a cabinet or desk drawer for five years. Now, OSHA’s new rule requires hundreds of thousands of employers to proactively submit these historically private records to OSHA, which in turn may publish the data online for all the world to see.
All establishments with 250 or more employees (in industries not exempt from keeping injury logs) must submit to OSHA annually their injury and illness data from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries. In this first year of the rule, however, for 2016 injury data to be submitted in calendar year 2017, all employers, irrespective of size, are only required to submit 300A Annual Summary data.
The submissions to OSHA must be made electronically, via a purportedly secure web portal.
OSHA stated its original intent was to publish the data online, likely in a manner that is sortable, searchable, filterable, and as embarrassing to employers as possible. It is unclear whether the Trump Administration will publish the data, but the records may nonetheless be subject to Freedom of Information Act requests by plaintiffs’ attorneys, the media, union organizers, and competitors, to use the data in a variety of ways to harm employers.
Deadline to Submit Data – A Moving Target
The deadline to submit data has been a moving topic and source of uncertainty since the Trump Administration took the reins at OSHA. Continue reading →
As the clock winds down on the Obama Administration, OSHA has been rushing out a series of proposed amendments to its Injury & Illness Recordkeeping regulations (29 C.F.R. Part 1904). Among them is a new final rule to “Improve Tracking of Workplace Injuries and Illnesses,” which will require hundreds of thousands of employers to electronically submit their injury and illness logs (and in many instances, their detailed incident reports also) each year. More importantly, for no apparent safety reason, OSHA intends to publish employers’ injury data and incident reports online.
Historically, unless OSHA opened an enforcement inspection at an employer’s workplace or the Bureau of Labor Statistics requested an employer to participate in its annual injury data survey, employers’ OSHA 300 Logs and related forms remained strictly in-house. Employers kept the data and their OSHA logs in their HR or Safety Department office, posted them internally for employees to view for a couple of months, used the data themselves to make decisions about how to reduce risk of injury and illness in their workplaces, and then stored the records in a cabinet or desk drawer for five years. In a major policy shift, the new rule requires hundreds of thousands of employers to proactively submit these historically private records to OSHA, which in turn will publish the data online for all the world to see.
All establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit to OSHA annually their injury and illness data and information from their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries.
As we wind down the year and head into the waning days of the Obama Administration, we look with interest at the Administration’s latest, and likely final, Semi-Annual Regulatory Agenda, published November 20th.
If one were a jaded OSHA defense lawyer like me, the thought that publication of the Agency’s list of regulatory priorities and planned rulemaking activities on the eve of the Thanksgiving holiday, when most of the country is focused on family, preparing a Thanksgiving feast, and gearing up for some good football, might have been intentional. “Maybe they won’t notice?” Well, we did, and we thought it would be useful for our readers to have a summary of OSHA’s final priorities in the regulatory arena as the Obama Administration focuses on legacy, and what they would like to accomplish before Secretary Perez and Assistant Secretary for OSHA David Michaels turn out the lights next year at 200 Constitution Avenue.
“So many workplace injuries, illnesses and fatalities are preventable. They not only put workers in harm’s way, they jeopardize their economic security, often forcing families out of the middle class and into poverty. The Department’s safety and health regulatory proposals are based on the responsibility of employers to provide workers with workplaces that do not threaten their safety or health and we reject the false choice between worker safety and economic growth. Our efforts will both save lives and improve employers’ bottom lines.”
One note about OSHA’s robust list of planned regulatory activity for 2016 — and an apt idiom for an analysis of the Thanksgiving Regulatory Agenda — OSHA’s eyes are too big for its stomach. While the Agency’s plans look ambitious and aggressive, if history is a guide, the cumbersome rulemaking machinery will prevent much of these plans from coming to fruition, especially in the final few months before the presidential election. Unless 2016 is an exception, this means there really are only a few productive months remaining for OSHA to accomplish some subset of its long list of priority actions. Looking at the roadblocks Dr. Michaels has already faced in the regulatory arena throughout his term – some of which came from the White House itself – it is unlikely OSHA will accomplish much of what appears in its final Regulatory Agenda.
Notwithstanding, it is important to understand the Agency’s rulemaking plans for numerous reasons, the most important of which is that you can count on the fact that Dr. Michaels’ last priorities will become the first priorities of the next Administration, should a Democrat again take the White House.