Making sense of OSHA’s E-recordkeeping Rule

Mandatory submission of injury and illness data to OSHA through a dedicated Web-based portal should, in theory, make the process quick and easy. However, a recent spate of real and proposed changes to the agency’s E-Recordkeeping Rule has left many employers wondering if they are required to submit injury and illness data for certain establishments, by when they must do it, and what the consequences are of not submitting the data.

The latest in Conn Maciel Carey LLP’s OSHA webinar series addressed these topics and provided some much-needed clarity for employers. Dan Deacon, an Associate in the Washington, D.C.-based law firm’s OSHA Practice group, highlighted an important change to the annual electronic recordkeeping requirement promulgated under the Obama Administration in May 2016. Under the plain text of the Rule, this year, establishments with 250 or more employees are supposed to submit not only their 300A data, but also data from their 300 Logs and 301 Forms, all by the July 1, 2018 deadline.

However, OSHA modified this requirement, so far without notice-and-comment rulemaking, in an announcement on its website shortly after issuing its Fall 2017 Regulatory Agenda, stating that establishments with 250 or more employees are now only required to submit 300A data.

This now matches the data submission expectations of establishments with 20 or more employees operating in certain designated high-hazard industries.

It’s important to note how OSHA defines its key terms in this area. An establishment can determine its employee count – one of the key elements to determine coverage under the Rule – by identifying the total number of employees at the point in the year when it employed the largest number of workers. This count includes temporary, part-time and seasonal workers (i.e., any worker the employer supervises on a day-to-day basis).

OSHA defines an establishment as a single physical location where a company conducts business, or where it performs services or industrial operations. Thus, companies must treat each individual location they operate as a single entity, and injury and illness data must be submitted on behalf of each covered establishment.

A common point of confusion, Deacon said, relates to who in a company can submit this data to OSHA on its Injury Tracking Application Web portal – a single person from office headquarters or someone from each individual establishment? Either approach is fine, Deacon said: “There is no hard-and-fast rule about who submits the data, as long as it gets submitted separately for each covered establishment.”

Another common source of confusion centers on the deadlines for submitting information to OSHA. Recordkeeping forms for 2016 were finally due on December 31, 2017, after OSHA pushed the deadline back several times. A statute of limitations is in effect for any failure to submit the 2016 data by that deadline, and that runs until June 15, 2018. A covered establishment must submit its 2017 300A data by July 1, 2018, and the deadline to submit 2018 injury and illness data, for now, is calendared for March 1, 2019 (and March 1st for each year thereafter). It is possible the July 1st deadline this year gets pushed, but the attorneys at Conn Maciel Carey have not heard anything specific on that front yet.

Deacon also reviewed what we know about the rollout of the first year for data submissions and identified some of the remaining issues plaguing employers. He mentioned that OSHA received about 214,000 submissions of 2016 data, which was about 200,000 fewer data sets than what it had expected. A few factors contributed to the lower-than-expected number, including:

  • a less-than-smooth rollout of the Injury Tracking Application, the launch of which OSHA had to delay, and then take down for a few weeks, due to a potential security breach;
  • confusion about the status of the rule due to the change in administrations, the numerous delays to the deadline, and the numerous announcements by the new Administration about changes to come; and
  • not all Federal OSHA-approved State OSH Plans have adopted the Rule.

The most recent confusion concerns the responsibilities of employers with establishments in State Plan states that have not yet adopted the E-Recordkeeping Rule. Currently, seven Federal OSHA-approved State Plans have not adopted the Rule, including California, Maryland, Wyoming, Utah, Washington, South Carolina and Minnesota. Nevertheless, in April of this year, OSHA issued a press release instructing covered establishments in these states to submit their 2017 data by the July 1, 2018 deadline.

However, the State Plans’ responses to employers with establishments in their states did not align with that directive, leaving many employers unsure what to do. For example, Washington, Maryland, and Wyoming issued statements reiterating that despite Federal OSHA’s announcement, the E-Recordkeeping Rule still does not apply in those states and employers are not required to submit data. Other states, such as California, are taking a more passive approach – advising employers to submit 300A data by the deadline, but apparently not requiring them to do so.

The questions now plaguing State Plan employers are whether they need to submit 300A data by the July 1 deadline, and whether there is any enforcement risk for not doing so. Deacon said there is in fact no requirement for these employers to submit their data, as the Occupational Safety and Health (OSH) Act does not give OSHA authority over state plan employers, only over the State Plans themselves. The remedy for delinquent State Plans is for Federal OSHA to rescind a State Plan’s approved status – not directing employers in those states to submit data.

Currently, employers in those seven states are not subject to the regulation and neither Federal OSHA nor the applicable state OSH agency has authority to cite an employer for failure to submit data.

Future developments to look out for around the E-recordkeeping Rule include a Notice of Proposed Rulemaking that OSHA says will come out “soon.” Many observers expect it to:

  • limit injury data to only 300A Annual Summaries for all employers in all years;
  • increase the minimum employee count for High Hazard industries, which is now 20; and
  • eliminate or curtail certain “anti-retaliation” provisions (e.g., limits on post-injury drug testing and safety incentive programs) also built into the Rule.

Deacon concluded the webinar with the following recommendations for employers on what actions they should do today to help keep the OSHA E-recordkeeping process as simple as possible:

  • provide refresher training on injury and illness recordkeeping requirements;
  • audit injury and illness recordkeeping forms to make sure they are current and accurate before submission to OSHA;
  • post the latest version of the OSHA Rights poster or inform employees of their right to report injuries without retaliation;
  • consider increasing random drug testing to offset limits to post-accident testing; and
  • evaluate and update your:
    • injury reporting policies to ensure they are not so burdensome as to discourage reporting;
    • drug test policy to ensure it doesn’t discourage reporting; and
    • safety incentive and management compensation programs to ensure they don’t discourage injury reporting.


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