GSBE Weekly Update 08/22/2018
OSHA Proposes Change to Electronic Record-Keeping Rule
Worksites with 250 or more employees would not be required to electronically submit certain data to the Occupational Safety and Health Administration (OSHA) under a proposal to roll back an Obama-era rule.
The Improve Tracking of Workplace Injuries and Illnesses rule requires employers that are covered by OSHA’s record-keeping regulations to electronically submit certain reports to the federal government. Certain establishments with 20-249 employees are required to submit only OSHA Form 300A each year—300A is a summary of workplace injuries and illnesses that many employers are required to post in the workplace from Feb. 1 until April 30 of each year.
In addition to Form 300A, larger establishments (those with 250 or more employees) were supposed to begin submitting data from Form 300 (the injury and illness log) and Form 301 (incident reports for each injury or illness) in July. However, in May, OSHA announced that it would not be accepting that information in light of anticipated changes to the rule.
As expected, on July 30, OSHA issued a Notice of Proposed Rulemaking (NPRM) to eliminate the requirement for large establishments to electronically submit information from Forms 300 and 301.
“OSHA has provisionally determined that electronic submission of Forms 300 and 301 adds uncertain enforcement benefits, while significantly increasing the risk to worker privacy, considering that those forms, if collected by OSHA, could be found disclosable” under the Freedom of Information Act, the agency said.
The electronic record-keeping rule has faced considerable opposition from the business community, in part because some of the data submitted will be made available to the public.
The proposed rule would also require employers to submit their employer identification numbers (EINs) when e-filing Form 300A. “Collecting EINs would increase the likelihood that the Bureau of Labor Statistics would be able to match data collected by OSHA under the electronic reporting requirements to data collected by BLS for the Survey of Occupational Injury and Illness,” the agency said.
Anti-Retaliation Rules Remain
OSHA’s electronic record-keeping rule also contains controversial anti-retaliation provisions. These provisions, which went into effect in December 2016, give OSHA broad discretion to cite employers for having policies or practices that could discourage employees from reporting workplace injuries and illnesses. For example, the provisions place limitations on safety incentive programs and drug-testing policies. OSHA has said that employers should limit post-accident drug tests to situations where drug use likely contributed to the incident and for which a drug test can accurately show impairment caused by drug use.
Prior to the new rules, many employers administered post-accident drug tests to all workers who were involved in an incident. The anti-retaliation provisions create another layer of ambiguity for employers, because they have to justify why they tested one person and not another, which may lead to race, gender and other discrimination claims, said Mark Kittaka, an attorney with Barnes & Thornburg in Fort Wayne, Ind., and Columbus, Ohio.
OSHA has not announced any plans to revise the electronic record-keeping rule any further. Many employer-side stakeholders were disappointed that OSHA made no effort to revise the anti-retaliation provisions, said John Martin, an attorney with Ogletree Deakins in Washington, D.C.
There are still undecided lawsuits in federal courts that challenged these provisions back when they were first issued but have been put on hold while revisions were pending, Martin noted. OSHA’s proposed revision clearly did not resolve all of the challengers’ concerns, so they are now deciding whether to ask the courts to resume litigation, he said.
Employers should keep in mind that OSHA’s electronic record-keeping rule refers to “establishment” size, not overall employer size, Kittaka said. An establishment is a single physical location where business is conducted or where services or industrial operations are performed, according to OSHA.
Large employers still need to electronically submit 300A summaries for each work establishment—office, plant, facility, yard, etc.—with 250 or more employees, Martin said. If they have work establishments with 20-249 employees and they are covered by OSHA’s high-hazard establishment list, then they must also submit 300A summaries for those smaller establishments.
The proposed rule is open for public comment until Sept. 28. “OSHA made clear in the proposed rule that the agency was only seeking comments on the electronic submission and EIN” proposals, said Tressi Cordaro, an attorney with Jackson Lewis in Washington, D.C.