On May 11, 2016, OSHA finalized the rule to “Improve Tracking of Workplace of Injuries and Illnesses.” The final rule amended two provisions of OSHA’s recordkeeping standards. As was expected, the rule requires many employers to electronically submit certain injury and illness records to OSHA. More unexpectedly, the rule contains certain anti-retaliation provisions that have been the subject of ongoing litigation.
OSHA’s recordkeeping requirements are nothing new, but employers have only been required to provide those records to OSHA if requested during an inspection. The final rule requires establishments1 with 250 or more employees to electronically submit to OSHA the 300A Summary, 300 Log and 301 Incident Report, and establishments with 20 - 249 employees in all of the manufacturing NAICS codes to electronically submit to OSHA the 300A Summary. These data submissions are scheduled to be phased in beginning July 1, 2017.
OSHA’s initial plan was to make the data publicly available on OSHA’s website. OSHA believed doing so would further its policy of “regulation by shaming” by encouraging employers to take additional actions to prevent workplace incidents in order to avoid a potentially negative impact on certain contracts and business relationships.
OSHA also planned to use the data to “effectively target” its enforcement resources. OSHA conducts two basic types of inspections: unprogrammed and programmed. Historically, unprogrammed inspections occurred in response to accidents of which OSHA became aware. Two years ago, the amended reporting requirement significantly increased the number of such inspections. The electronic recordkeeping requirement would further increase OSHA’s awareness of workplace accidents and provide OSHA with an additional basis for initiating accident-related inspections.
The first phase-in deadline requires all covered employers to electronically submit the 300A Summary by July 1, 2017. According to OSHA’s website, OSHA “will provide a secure website” for electronic reporting. Despite the looming deadline, OSHA has not yet rolled out the website for these electronic submissions (https://www.osha.gov/injuryreporting/), nor has OSHA issued any formal statement regarding when employers should expect the secure website to be available.
As is the case with the Silica and Beryllium rules, OSHA may be waiting to take action until new leadership has the opportunity to review the rule. OSHA’s recent actions in two pending challenges to the rule indicate as much.
In July 2016, industry groups challenged the electronic submission and anti-retaliation provisions of the rule. TEXO ABC/AGC Inc. et al. v. Perez et al., No. 3:16-cv-01998-L (N.D. Tex.) Regarding the electronic recordkeeping submission, the plaintiffs have alleged:
OSHA changed its position with respect to the confidentiality of the information it is requiring companies to produce on its online database, without providing a reasoned justification; and
OSHA failed to provide evidence that publication of employers’ information from its online database will have any effect on workplace safety and health; rather, the intent of the rule is to allow employers’ confidential and proprietary information to be misused and misinterpreted by the public and special interest groups, thereby exposing businesses to significant reputational harm and loss of goodwill.
In another challenge to electronic reporting provisions of the rule, industry groups have alleged OSHA is not authorized “to publicly disseminate reports collected under the Rule [because] Congress has not given the Agency the authority to publish injury and illness data and confidential business information, as it has with other regulatory agencies, such as the Mine Safety and Health Administration . . . ” Plaintiffs also note OSHA previously took the position that the information from Form 300A “was exempt from disclosure under the Freedom of Information Act because such disclosure ‘can cause substantial competitive injury.’” National Association of Home Builders of the United States et al. v. Perez et al., 5:17-cv-00009-R (W.D. Okla.).
In both cases, OSHA recently requested the proceedings be stayed for 60 days to “allow incoming leadership personnel at the United States Department of Labor adequate time to consider the issues raised in this case.”
Although the future of the electronic reporting rule remains uncertain, covered employers should be prepared to submit 300A information by July 1, 2017 should OSHA move forward with the initial deadline and make the reporting website available.