REMINDER: Feb. 1st Deadline to Prepare, Certify, & Post OSHA 300A Annual Summaries of Work Related Injuries: 5 Common Mistakes Employers Make

By Lindsay A. DiSalvo, Dan C. Deacon, and Eric J. Conn

This is your yearly reminder about the important 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 in the set of low-hazard industries exempt 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 1st requirement to prepare, certify and post 300A forms should not be confused with OSHA’s new-ish Electronic Recordkeeping Rule.  The February 1st deadline is only about the internal hard copy posting of 300A data for your employees’ eyes.  The E-Recordkeeping Rule, on the other hand, requires certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through OSHA’s web portal – the Injury Tracking Application. The deadline for those submissions this year (i.e., to submit 300A data from 2018) is March 2, 2019.

By February 1st every year, however, 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.

Five Common 300A Mistakes that Employers Make

We frequently see employers make the following four mistakes related to this annual duty to prepare, post and certify the injury and illness recordkeeping summary: Continue reading

Delinquent State OSH Agencies Adopt E-Recordkeeping; Calif. Employers to Submit 2017 Injury Data by Year End

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, E-Recordkeeping Ruleit 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

OSHA’s New Site-Specific Targeting Inspection Initiative

By Dan C. Deacon and Eric J. Conn

After years of wondering how OSHA could possibly manage and use data collected under the 2016 E-Recordkeeping Rule, the agency has finally revealed its hand.  Last month, OSHA launched its Site-Specific Targeting 2016 (“SST-16”) inspection plan, which outlines the agency’s strategy to target establishments for inspection based on the 300A data collected by OSHA under its Final Rule to Improve Tracking of Workplace Injuries and Illness (i.e.  the “E-Recordkeeping Rule”).

What is OSHA’s SST-16 Inspection Plan?

The SST-16 Inspection Plan is OSHA’s site-specific targeting inspection plan for non-construction workplaces that have 20 or more employees.  The Plan is based on the calendar year 2016 300A injury and illness summary data that employers submitted to OSHA via OSHA’s Injury Tracking Application (aka, the E-Recordkeeping Portal) in December 2017.

Employers should not be surprised by OSHA’s site-specific targeting plan, as this is not a novel program for OSHA. SST was the grandfather of all OSHA enforcement emphasis programs.  Prior to 2014, SST programs used injury and illness information collected under the former OSHA Data Initiative to target the agency’s inspection resources.

OSHA believes the SST Program is “program helps OSHA achieve its goal of ensuring that employers provide safe and healthful workplaces by directing enforcement resources to those workplaces with the highest rates of injuries and illnesses.

The SST-16 Plan selects individual establishments for inspection based on their CY 2016 300A injury data submitted under the E-Recordkeeping Rule.  OSHA has created a software that will generate a list of targeted establishments for enforcement from this pool of data.  The targeted establishments will be those with Continue reading

[Webinar] OSHA and the ADA: How Two Labor Laws Align and Diverge

On Tuesday, December 4, 2018 at 1 PM Eastern, join Jordan B. Schwartz and Lindsay A. DiSalvo of the law firm Conn Maciel Carey for a complimentary webinar: “OSHA and the ADA: How Two Labor Laws Align and Diverge.”

OSHA guidance states that “if an employee can perform their job functions in a manner which does not pose a safety hazard to themselves or others, the fact they have a disability is irrelevant.”  But under the Americans with Disabilities Act, it can be difficult to determine when and how to accommodate a disability while also protecting safety of disabled employees and their co-workers.  This assessment is further complicated when employers are unaware a disability may cause or contribute to a workplace hazard.  It is important to understand the law in this context, especially due to America’s aging workforce.

The ADA also requires medical information related to a disability be kept confidential, yet OSHA mandates certain information be provided on OSHA injuries and illness recordkeeping Logs.  A disability may also impact whether and how an injury is recorded.  Likewise, both the ADA and OSHA rules impact employee drug testing and handling drug test information.  Therefore, it is critical for employers to understand the intersection between the ADA and OSHA.

​During this webinar, participants will learn: Continue reading

REMINDER: Feb. 1st Deadline to Certify and Post OSHA 300As: Four Common Mistakes Employers Make

By Eric J. Conn

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 RK 2summation 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: Continue reading

OSHA Indefinitely Delays E-Recordkeeping Data Submission Requirements

By Eric J. Conn and Dan C. Deacon

In the final year of the Obama Administration, OSHA published a controversial amendment to its Injury and Illness Recordkeeping Rule known as the “Improve Tracking of Workplace Injuries and Illnesses” RuleAs published last year, the new Final Rule significantly changed employers’ obligations under OSHA’s recordkeeping scheme.  Among other hotly contested provisions, the new rule would require employers, beginning July 1, 2017, to proactively submit their employee injury and illness recordkeeping data to OSHA, so that OSHA could publish the data for all the world to see.

In a dramatic, but not unexpected, move last week, OSHA suspended this controversial data submission requirement with no word on when – or whether – a new deadline would be set for the data submission.

Telltale signs that the new Administration was rethinking the data collection requirement, and especially the plan to publish data, were clear well before last week.  OSHA stated at the time the rule was published in May 2016 that it would develop a secure portal into which employers would submit the data, and that the portal would be live by February 2017, well in advance of the July 1st data submission deadline.  We understand the development of the database was completed, and learned that OSHA beta-tested the portal with the help of a few major national employers and employer organizations.

Nevertheless,  Winter and Spring came and went with no public sign of the secure data portal, or update from OSHA about how precisely the database would function or when it would go live.  Since we are so close to the July 1st submission deadline and still no database with which employers could begin to get familiar, it was not surprising that on May 17th, OSHA updated its website to officially announce a reprieve from the looming July 1st deadline, stating:

OSHA is not accepting electronic submissions of injury and illness logs at this time, and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. Updates will be posted to this webpage when they are available.

Our expectation is that the new Administration will Continue reading

Get the Record Straight: Latest on OSHA’s E-Recordkeeping and Anti-Retaliation Rule [Webinar Recording]

On May 16, 2017, Amanda R. Strainis-Walker and Dan C. Deacon of Conn Maciel Carey’s national OSHA Practice Group, presented a webinar regarding OSHA’s E-Recordkeeping and Anti-Retaliation Rule.”  Here is a link to a recording of the webinar.
OSHA’s controversial new Electronic Injury and Illness Recordkeeping data submission rule, along with its new Anti-Retaliation elements has thus far survived a barrage of negative stakeholder comments during the rulemaking, multiple enforcement deferrals, and a legal challenge complete with a preliminary injunction motions, and continuing legal challenges.  As of today, all elements of the rule are in effect, including limits on post-injury drug testing and safety incentive programs, and barring a change before July 1, 2017, thousands of employers will, for the first time, be required to submit injury and illness recordkeeping data to OSHA, possibly for publishing online.

Participants in this complimentary webinar learned about:

  • Requirements of OSHA’s Electronic Injury Recordkeeping data submission
  • The status of OSHA’s new database to receive injury data
  • OSHA’s policy on publishing the injury data received from employers
  • The Anti-Retaliation Elements of the E-Recordkeeping Rule
  • The status and future of this new Final Rule
  • The fate of “Volks” Recordkeeping Statute of Limitations Rule

This was the fifth webinar event in Conn Maciel Carey’s 2017 OSHA Webinar Series.  Plan to join us for the remaining complimentary monthly OSHA webinars.  Click here for the full schedule and program descriptions for the 2017 series, and/or to register for the entire 2017 series, click here to send us an email request, and we will get you registered.

If you missed any of our prior webinars in the 2017 or past years’ OSHA Webinar Series, here is a link Conn Maciel Carey’s Webinar Archive.

OSHA Postpones Enforcement of Anti-Retaliation Provisions of e-Recordkeeping Rule Again

By Eric J. Conn and Dan C. Deacon

OSHA has once again delayed enforcement of the controversial anti-retaliation provisions of its new electronic injury and illness recordkeeping rule.  OSHA issued its second delay of the effective date of enforcement of this portion of the rule at the request of Judge Sam Lindsay of the U.S. District Court for the Northern District of Texas.  Judge Lindsay is presiding over a legal challenge to this portion of the rule filed by industry plaintiffs, and asked OSHA to delay enforcement of the anti-retaliation provisions RK Rule FRto give the court additional time to consider a pending motion for preliminary injunction to indefinitely delay enforcement.  The new enforcement delay runs through December 1, 2016.

As we have described in previous articles, OSHA included in the new electronic recordkeeping rule, a set of new obligations requiring employers to implement “reasonable reporting” procedures for employees to report to their employers work-related injuries. Also included are a broad and vague new set of provisions that expand OSHA’s enforcement authority to prevent employer retaliation against employees who report injuries and illnesses. OSHA has provided little guidance on precisely what the agency intends by “reasonable” reporting procedures or what types of policies may violate the new anti-retaliation provisions, but we understand from past policy statements and regulatory history that OSHA will at least focus on reporting deadlines, safety incentive programs, post-injury drug testing, and management compensation or bonuses tied to injury rates.

Industry plaintiffs filed a lawsuit in the Northern District of Texas (TEXO ABC/AGC, Inc., et al. v. Perez, Civil Action No. 3:16-cv-01998-D) shortly after the final rule was promulgated, challenging these anti-retaliation elements of the rule on the grounds that OSHA did not show that the anti-relation provisions would actually reduce injury rates, and further that the agency did not follow requirements of the Administrative Procedures Act (“APA”) in the rulemaking process. The plaintiffs sought a preliminary injunction seeking to prevent OSHA from beginning to enforce these provisions pending Continue reading

OSHA’s Anti-Retaliation Recordkeeping Rule: Assault on Pizza Parties, Drug Tests and Exec Compensation

By Eric J. Conn and Dan C. Deacon of Conn Maciel Carey PLLC

OSHA’s recent Injury and Illness Recordkeeping reform has created quite a stir for employers.  As we discussed in an earlier article about the new Recordkeeping rule, OSHA now requires employers to electronically submit to OSHA their injury and illness recordkeeping data.  OSHA will, in turn, publish the data online for all the world to dissect.  It turns out, however, RK Rule FRthe electronic recordkeeping data submission elements of the new rule may not be the most problematic for employers.

The new Recordkeeping rule also increases employers’ obligations to implement “reasonable reporting” procedures for employees to report to their employers the work related injuries they incur, and expands OSHA’s enforcement authority by introducing a vague new set of anti-retaliation provisions.  To date, employers have seen little guidance about what OSHA means by reasonable reporting procedures or what types of policies may violate the new anti-retaliation provisions.

Particularly controversial is the impact of OSHA’s new rule on employers’ policies for post-injury drug testing, safety incentive programs, and executive compensation and bonuses.  Although none of those words appear in the amended Recordkeeping regulation, OSHA addressed each in the Preamble to the Final Rule.

These topics have been on OSHA’s radar for nearly a decade, dating back to a 2008 Report issued by the House of Representative Committee on Education and Labor entitled “Hidden Tragedy: Underreporting of Workplace Injuries and Illnesses.”  From that time, OSHA has been making efforts to address a perceived culture of underreporting injuries and retaliation against employees who do report workplace injuries and illnesses. OSHA has used every tool at its disposal to chip away at employer policies and practices that purportedly discriminate against employees who report injuries, or that attempt to deter employees from reporting injuries in the first place.

Even before this rulemaking, OSHA has taken action against policies that OSHA believes discourage reporting or recording of work related injuries.  For example, Continue reading

Get the Record Straight: OSHA’s New Injury Recordkeeping E-Submission Rule [Webinar Recording]

On June 7, 2016, Eric J. Conn and Amanda Strainis-Walker of Conn Maciel Carey’s national OSHA Practice presented a webinar regarding OSHA’s New Injury Recordkeeping Data Electronic Submission Rule as part of the Firm’s 2016 OSHA Webinar Series.

 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.

Another rule working its way through the rulemaking process: “Continuing Duty to Maintain Up-to-Date and Accurate Injury & Illness Records,” would impose a continuing duty on employers to update and maintain

Continue reading

FAQ about OSHA’s Electronic Recordkeeping Rule: Establishment vs. Company-wide?

By Eric J. Conn

The one question I have been asked more than any other about OSHA’s new final rule for injury and illness recordkeeping electronic submission (aka the “Improve Tracking of Workplace Injuries and Illnesses” Rule), is whether the threshold numbers of employees that trigger data submission requirements apply corporate-wide or by individual establishment within the company.RK Rule FR

The new recordkeeping rule requires establishments with 250 or more employees to submit to OSHA annually their OSHA 300 Logs, 301 Incident Reports, and 300A Annual Summaries, and requires establishments with 20-249 employees in certain so-called “high hazard industries” to submit to OSHA annually the information from their 300A Annual Summaries only.

The question goes to those two threshold triggers for reporting.  Specifically, do employers count the:

  1. Total number of employees across the entire company, and if that total number exceeds 20 or 249 employees, report the applicable recordkeeping data for all locations; OR
  2. Employee numbers at each individual location, and report the applicable recordkeeping data for only locations where the employee count exceeds 20 or 249?

The data submission requirements of the new rule are Continue reading

OSHA Proposed Rule Attempts to Undo D.C. Circuit Recordkeeping Statute of Limitations Ruling

By Eric J. Conn and Kate M. McMahon

Earlier this year, we wrote about a very significant rulemaking to amend OSHA’s injury and illness recordkeeping regulations to require employers to proactively submit their injury logs and reports to OSHA on a regular and frequent basis. We understand OSHA is committed to implementing that rule before the Obama Administration shuts out the lights and hands over the keys. The data submission recordkeeping rule is not, however, the only effort underway by OSHA to reform its recordkeeping regulations.

In what is certain to land OSHA back in court, OSHA plans to soon roll out a rule that attempts to end-run around the U.S. Court of Appeals for the D.C. Circuit’s decision that rejected the Agency’s historical doctrine that violations of OSHA injury and illness recordkeeping requirements continued each day an employer’s log remained incomplete or inaccurate, and declared instead that recordkeeping violations may only be cited within a strict six month statute of limitations.RK Rule Proposal  OSHA has attached the misleading name “Clarification of Employer’s Continuing Obligation to Make and Maintain an Accurate Record of Each Recordable Injury and Illness” to this rulemaking.

The driver behind OSHA’s proposed amendment to its injury and illness recordkeeping rule is not to clarify anything, but rather to attempt to undo the D.C. Circuit’s very clear 2012 decision in AKM LLC v. Secretary of Labor (aka the Volks Constructors case). In Volks Constructors, OSHA argued that every day the logs remain inaccurate, the employer commits a new violation, and extends the enforcement deadline. In other words, even though Congress set a six month statute of limitations for OSHA violations, OSHA believed the statute of limitations for injury and illness recordkeeping violations was five years plus six months due to the “continuing” nature of recordkeeping violations. Applying this expansive and flawed view of the statute of limitations historically gave OSHA wide latitude in recordkeeping enforcement. Continue reading

February 1st Deadline to Certify and Post the OSHA 300A: Four Common Mistakes Employers Make

By Amanda R. Strainis-Walker and Eric J. Conn of Conn Maciel Carey’s national OSHA Practice Group

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 RK 2summation 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:

  1. Not having a management representative with high enough status within the company “certify” the 300A;
  2. Not posting a 300A for years in which there were no recordable injuries;
  3. Not maintaining a copy of the certified version of the 300A form; and
  4. 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:

  1. Personally examined the 300A Annual Summary Form;
  2. Personally examined the OSHA 300 Log from which the 300A Annual Summary was developed; and
  3. 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 onlyRK 3 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.

OSHA’s Top 5 Rulemaking Priorities to Close Out the Obama Era

By Eric J. Conn

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.Reg Agenda Image

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.

In the “Fall 2015 Statement of Regulatory Priorities” that accompanied this regulatory update, Sec. Perez expressed:

“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.

Here is our summary of OSHA’s top five regulatory priorities for 2016: Continue reading

Slicing the Nuances of OSHA’s Amputation Reporting Requirements

By Eric J. Conn and Lindsay A. Smith

Under OSHA’s new injury and fatality reporting rules, amputations have become a specific type of injury that must be reported to OSHA, regardless of whether the employee is hospitalized.  Specifically, OSHA amended its reporting rule at 29 C.F.R. 1904.39 (“Reporting fatalities, hospitalizations, amputations, and losses of an eye as a result of work-related incidents to OSHA”) to read, in pertinent part:Reporting 3.JPG

“Within twenty-four (24) hours after … an employee’s amputation …, as a result of a work-related incident, you must report the … amputation … to OSHA. . . .  For an … amputation …, you must only report the event to OSHA if it occurs within twenty-four (24) hours of the work-related incident.”

The long and short of the new reporting requirement is that an amputation constitutes an automatic report to OSHA even if it does not result in a hospitalization or any days away from work, or even require medical treatment beyond first aid.  There are, however, several key nuances that employers must be aware of before they pick up the phone to call OSHA.

What Types of Injuries Should be Reported as an Amputation?

As an initial matter, an employer must understand what constitutes an amputation.  The rule defines “amputations” as:

“[T]he traumatic loss of a limb or other external body part.  Amputations include a part, such as a limb or appendage, that has been severed, cut off, amputated (either completely or partially); fingertip amputations with or without bone loss; medical amputations resulting from irreparable damage; amputations of body parts that have since been reattached. Amputations do not include avulsions, enucleations, deglovings, scalpings, severed ears, or broken or chipped teeth.”

Although this definition may seem straightforward, there is ambiguity around the distinction between a “partial amputation” and an avulsion or laceration.  Based on OSHA’s definition, the term “amputation” would require Continue reading

OSHA’s Proposed Rule to Require Frequent Submission of Injury Data

By Eric J. Conn

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), but none of them has the potential to be as impactful to employers as much as the proposed requirement for employers to make frequent submission of injury data to OSHA.RK Rule 1  Specifically, in November 2013, OSHA issued a Notice of Proposed Rulemaking for a proposed rule to “Improve Tracking of Workplace Injuries and Illnesses.”

The rule was widely-criticized by stakeholders through the notice and comment period, but OSHA has advanced the rule to the final stage of the rulemaking process.  Specifically, on October 5, 2015, OSHA submitted a draft final rule to the White House’s Office of Information and Regulatory Affairs (OIRA).  OIRA is a division of the Office of Management and Budget (OMB) that is responsible to review near final proposed regulations, particularly significant regulatory actions.  Generally, OMB has up to 90 days to review a rule, but that period can be extended.

This particular proposed rule would require many employers to electronically submit their injury-and-illness logs (and in many instances, their detailed incident reports also) to OSHA on a regular and frequent basis, as often as quarterly for large employers.  For no apparent safety reason, OSHA also intends to publish employers’ injury data and incident reports online.

This proposal would dramatically shift the current recordkeeping program. Currently, unless OSHA inspects an employer or the Bureau of Labor Statistics (BLS) requests that the employer participate in an annual injury recordkeeping survey, OSHA 300 Logs and related forms remain strictly in-house. Employers keep the data and their OSHA logs in their Human Resources’ or Safety Director’s office, post them for employees for a couple of months, and then store them in a desk drawer for five years.

Requirements of the Proposed Rule. The proposed rule would impose two different burdens on employers:

  1. Employers with 250+ workers (at peak employment during the prior calendar year) must submit on a quarterly basis injury and illness recordkeeping logs and detailed incident reports to OSHA (i.e., the 300 logs and 301 reports);
  1. Employers with 20+ workers in certain “high hazard industries” must submit to OSHA their 300A Annual Summary data of recordable injuries on an annual bases.

Employers will be required to submit the data electronically to OSHA, supposedly via a secure website that has not yet been designed. These reports will include an incredible amount of data, including employees’ personal and health-related information. In theory, OSHA would scrub employee-identifying information (but not employer-identifying information), and publish Continue reading

OSHA’s New Injury & Fatality Reporting Rule: Time to Add OSHA to Your Speed Dial

By Eric J. Conn and Amanda R. Strainis-Walker

On New Year’s Day 2015, the Occupational Safety and Health Administration’s (OSHA) new injury and fatality reporting rule became effective, significantly revising the triggering events for reporting workplace accidents to OSHA under the Agency’s Injury and Illness Recordkeeping regulations at 29 C.F.R. 1910.104, et seq.

New Injury and Illness Reporting Rule

The new regulations differ from the long-standing incident reporting rule in four ways:

  1. Lower the threshold for proactively reporting a catastrophic incident from the hospitalization of three or more employees to the hospitalization of a single employee;Reporting 3.JPG
  1. Add amputations (including partial amputations) and loss of an eye to the types of injuries that employers must proactively report;
  1. Introduce an internet portal for employers to submit reportable events; and
  1. Require publication of the reporting events on OSHA’s public website.

Requirements of the New Reporting Rule. The reporting rule has been long-referred to informally as the “Fat-Cat” rule because it requires employers to report to OSHA all incidents that result in an employee fatality (Fat) or a catastrophe (Cat). The new regulation redefines catastrophe. Historically, a catastrophe had been defined as an incident that resulted in the overnight hospitalization for treatment of three or more employees.

The Agency views the new report triggering events as indicative of serious hazards at a workplace. Assistant Secretary of Labor for OSHA David Michaels explained that:

“hospitalizations and amputations [are] sentinel events, indicating that serious hazards are likely to be present at a workplace and that an intervention is warranted to protect the other workers at the establishment.”

In addition to lowering the threshold from three to one employee hospitalizations, OSHA also changed the definition of “hospitalization.” Historically, an employee’s overnight hospital stay triggered the reporting requirement. Under the new rule, whether the hospitalization is a reportable event turns not on whether the employee stays overnight, but rather, whether the employee is formally admitted to the “in-patient” service of the hospital or clinic. The visit, however, must involve medical care after the in-patient admission. A hospital visit only for observation or diagnostic testing, even if it involves in-patient admission, does not constitute a reportable event.

The concepts of “formal admission” and “in-patient service” seem to be causing significant confusion in the new rule’s early stages. While OSHA continues to Continue reading

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