OSHA Delays Electronic Submission of Records Requirements
Occupational Safety & Health Administration (OSHA) is proposing to delay until December 1, 2017 the compliance date for employers to electronically submit injury and illness data as part of the agency’s Improve Tracking of Workplace Injuries and Illnesses final rule. This will allow affected entities sufficient time to familiarize themselves with the electronic reporting system and to provide the new administration an opportunity to review the new electronic reporting requirements prior to their implementation..
Recap of the Final Rule
In May of 2016, the final rule “Improve Tracking of Workplace Injuries and Illnesses” was issued by OSHA to revise its recording and reporting requirements. This ruling, which became effective on January 1, 2017, requires more than 460,000 employers in certain industries to electronically submit to OSHA the injury and illness information that they are already required to keep under existing regulations. According to the final rule, establishments with at least 250 workers must electronically submit data from OSHA forms 300, 300A, and 301 annually. The original compliance date was slated for July 1, 2017.
OSHA plans to make submitted recordkeeping data readily available to the public in standard open formats on osha.gov. Interested parties will be able to search and download the data. OSHA’s goals for posting this data include encouraging employers to increase their efforts to prevent worker injuries and illnesses, and enabling researchers (and other groups) to examine these data in innovative ways that may help employers make their workplaces safer and healthier.
For now, employers have no additional responsibility to submit injury and illness records electronically to OSHA.
How will organizations submit this data to OSHA?
When the final rule was first published, OSHA revealed that the agency intends to provide a secure Injury Tracking Application (ITA) web site for the electronic submission of recordkeeping information. In addition, to enable users of current OSHA recordkeeping software systems to submit their incident data electronically, OSHA also plans to offer a CSV file upload tool and an Application Programming Interface (API).
The ITA will be accessible from this page on August 1, 2017, where you will be able to provide the Agency your 2016 OSHA Form 300A information. OSHA also published a notice of proposed rulemaking to extend the date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically from July 1, 2017 to December 1, 2017.What are the other provisions of this rule?
In addition to requiring the electronic submission of recordkeeping data, the final rule includes provisions that prohibit employers from retaliating against workers for reporting a fatality, injury, or illness. Section 11(c) of the Occupational Safety and Health Act already prohibits retaliation against employees who report a workplace incident. However, OSHA may not act under that section unless an employee files a complaint with OSHA within 30 days of the retaliation.
Under the new final rule, OSHA will be able to cite an employer for retaliation even if the employee did not file a complaint, or if the employer has a program that deters or discourages reporting through the threat of retaliation. This new provision is important because it gives OSHA the ability to protect workers who have been subject to retaliation, even when they cannot speak up for themselves.
OSHA’s interpretations of the anti-retaliatory provisions of the final rule have also generated some controversy, as the agency has concluded that post-incident drug and alcohol testing deter employees from reporting injuries and illnesses. According to the comments provided in the final rule, OSHA explains that post-injury drug and alcohol testing policies must be limited to situations in which there is a reasonable possibility that an employee’s drug or alcohol use was a contributing factor to a reported incident.
In addition, under the rule, safety incentive programs may be viewed as retaliatory if they offer benefits to employees or workforces who do not report injuries and illnesses.
What has been the response to this rule?
Since the final rule was published, several court cases have emerged challenging the legality of the final rule. Shortly after the final rule took effect, the National Association of Home Builders (NAHB), backed by several other industry groups, filed a lawsuit against OSHA in the U.S. District Court. This lawsuit claims that OSHA lacks the authority to issue the rule’s anti-retaliation provision, in addition to opposing the public posting of employers’ injury and illness logs.
The NAHB expressed concerns that the public posting will expose businesses to reputational harm with no evidence that it would effectively improve workplace safety. Several public health advocacy groups filed a motion in March to intervene in the lawsuit, wishing to act as defendants alongside OSHA. Among these public health groups are Public Citizen, which argues the rule will improve data collection that will be used to identify trends and improve worker protections. The case is currently waiting to be reviewed by the courts.
What does the future hold?
Currently, Alexander Acosta is President Trump’s nominee as Secretary of Labor. As head of the Department of Labor, one of Acosta’s first duties will be to appoint several vacant seats in OSHA’s staff. While Acosta’s agenda and viewpoints on the rule are not fully clear, more progress might be made on the ITA site and file upload process when these vacancies within OSHA are filled.
Delaying the ruling’s first submission deadline is providing OSHA with more time to build and release the ITA site and other data submission tools, and is also easing the burden on employers by allowing them additional time to prepare their data.
Any updates regarding the Electronic Recordkeeping rule will be posted to the OSHA website: https://www.osha.gov/recordkeeping/index.html.