In May of 2016, the final rule “Improve Tracking of Workplace Injuries and Illnesses” was issued by the Occupational Safety and Health Administration (OSHA) to revise its recording and reporting requirements, and became effective on January 1, 2017.
According to the final rule, establishments with at least 250 workers must electronically submit data from OSHA forms 300, 300A and 301 annually. The reporting requirements of the final rule will be phased in over two years, with the first submission deadline slated for July 1, 2017, at which time all establishments impacted by the ruling must electronically submit their annual 2016 Form 300A data to OSHA.
However, OSHA has recently issued an update to publicly announce that the agency intends to propose extending the July 1, 2017 date. When contacted in April, a representative of OSHA’s Department of Communications indicated that the agency may move this submission deadline to the end of the 2017 year.
How will organizations submit their 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, in order 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).
OSHA had announced that it would roll out this API and file upload tool in February of 2017. During that month, the secure ITA web site and web form for electronic data submission were also planned to be launched.
While OSHA has released technical specifications and instructions for the file upload tool and API, their launch, as well as the launch of OSHA’s ITA site, have been delayed for an unknown length of time.
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.
However, 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 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 which will be used to identify trends and improve worker protections. The case is currently waiting to be reviewed by the courts.
In July of 2016, Associated Builders and Contractors and seven other organizations also filed a lawsuit to block the rule from going into effect.
The lawsuit similarly focused on the anti-retaliation provisions that prohibit employers from using drug testing after an incident to retaliate against workers who report injuries or illnesses. The organizations claim the provision is as an overreach of authority by unlawfully limiting safety incentive programs and routine post-accident drug testing.
The motion was denied by the U.S. District Court in late November, and decisions on the legality of the rule have been delayed until after the ruling’s initial submission deadline on July 1, 2017.
What does the future hold?
On April 27, 2017, Alexander Acosta was confirmed by the Senate as head of the Department of Labor. As he assumes his new position, one of Acosta’s first duties will be to appoint several vacant seats in OSHA’s staff. Currently, the agency’s Assistant Secretary, Chief of Staff, Senior Advisors, and one Deputy Assistant Secretary position are all vacant.
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 will not only provide OSHA with more time to build and release the ITA site and other data submission tools, but will also ease the burden for employers by allowing them additional time to prepare their data.
The postponement of the rule’s first submission deadline could also potentially allow the Texas or Oklahoma federal courts to rule on the legality of the rule’s anti-retaliation provisions before employers are required to comply with electronic submission deadlines.
Overall, the delay of this submission deadline will place less stress on employers and allow them additional time to prepare to comply with the ruling.
Fortunately, the launch of IndustrySafe’s 5.11 Update in June will make it simple and easy for users to comply with the rule. This release will allow organizations to generate a CSV file compatible with OSHA’s electronic submission requirements.
Any further updates regarding the Electronic Recordkeeping rule will be posted to the OSHA website here: https://www.osha.gov/recordkeeping/index.html.