Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.
On Monday, July 30, 2018, the Occupational Safety and Health Administration (OSHA) issued a proposed rule to abolish much of the existing electronic reporting obligations for establishments with 250 or more employees. Under the proposed rule, OSHA would drop the requirement for establishments with 250 or more employees to electronically submit injury or illness data (OSHA Form 300) or incident reports (OSHA Form 301).
Background on the Electronic Reporting Rule
OSHA promulgated the electronic reporting rule (ERR) during the Obama administration. According to OSHA at that time, the ERR improved workplace safety and research about workplace injuries through the collection and publication of national workplace injury and illness data. In its current form, the ERR requires establishments with 250 or more employees to submit information about work-related injuries and illnesses (OSHA Form 300); a summary of work-related injuries and illnesses (OSHA Form 300A); and injury and illness incident reports (OSHA Form 301) each calendar year.1 In certain covered industries, establishments with 20-250 employees are merely required to submit the summary of work-related injuries and illness each calendar year (OSHA Form 300A).2
The ERR took effect on January 1, 2017, and was supposed to phase in the above requirements during 2017 and 2018.3 In 2017, the ERR was to require that covered establishments submit their summary of work-related injuries and illnesses (OSHA Form 300A) for 2016 by July 1, 2017. Then, in 2018, the ERR was to require establishments with 250 or more employees to submit more specific data about workplace injuries and illnesses from 2017 through the OSHA Form 300 and the OSHA Form 301, by July 1, 2018.4 Beginning in 2019, all covered establishments were to submit their required injury and illness information by March 2 for the previous calendar year.5
After President Trump took office in 2017, however, OSHA announced that it would not accept certain electronic submissions of injury and illness logs. Since then, OSHA has delayed enforcement of the ERR, and extended the initial deadline for 2016 OSHA Form 300A submissions to December 15, 2017.6 Most recently, OSHA indicated that it would not accept OSHA Form 300 or OSHA Form 301 for large establishments for the July 1, 2018 deadline, citing its intent to finalize an amended version of the ERR.
OSHA’s change has raised some controversy. On July 25, 2018, a coalition of public interest groups sued OSHA for failing to implement the ERR or for not revising it through the Administrative Procedure Act’s rulemaking process. This is not the first lawsuit filed to challenge OSHA’s application of the existing ERR. Industry groups previously filed suits challenging the validity of the ERR, arguing that the rule was flawed in the making, and that it unreasonably harms employers by, among other things, requiring the public disclosure of sensitive employee health and employer information.
Why the Change?
Unlike the current ERR, the new proposed rule would no longer require large establishments to electronically submit data for each workplace injury or illness contained in the OSHA Form 300 and OSHA Form 301—only a general summary of workplace illness and injuries through the OSHA Form 300A. Also, the new rule would require covered employers to submit their Employer Identification Number electronically with their injury and illness data submission.
The motivation behind OSHA’s revised ERR appears threefold.7 First, OSHA has now announced that the existing ERR may jeopardize employee privacy, particularly regarding information in the OSHA Form 301—which includes sensitive information regarding medical treatment, the nature of the employee’s injury and/or illness, and a description of how the injury occurred, among other items. Once this information is in OSHA’s hands, the agency noted, it becomes subject to public disclosure under the Freedom of Information Act. Second, OSHA now questions the value of gathering mass amounts of granular data about workplace injuries, given the agency’s limited resources and inability to analyze the data in hundreds of thousands of forms for enforcement. Third, OSHA was concerned about cost, estimating that the current ERR would collectively cost affected employers $8.2 million each year.
What’s Not in the Proposed Revision to the ERR?
The proposed ERR does not address the anti-retaliation provisions of the existing version of the ERR, which took effect in December 2016. OSHA had previously announced that certain drug-testing policies and safety incentive programs might be considered retaliatory because, according to OSHA, they allegedly deter employees from reporting workplace injuries and illnesses. OSHA did not clarify its position on this front in the proposed ERR. OSHA also did not revise provisions that ostensibly allow OSHA to cite an employer for retaliation absent a timely complaint under Section 11(c) of the OSH Act, which industry groups contend provides the exclusive remedy for retaliation related to workplace safety and health. OSHA made clear in proposing the new ERR that it sought comments for the electronic submission and employer identification number portions of the existing ERR, and “not on any other aspects Part 1904.”
The Bottom Line
While the new rule is considered, employers need not worry about electronically submitting their OSHA 300 or 301 forms because OSHA has stayed the deadline for these electronic submissions. And if, as anticipated, the amended rule is adopted, any requirement to electronically submit OSHA 300 and 301 forms will be removed entirely.
Covered employers must continue to maintain OSHA Forms 300, 301, and 300A, as required by existing OSHA recordkeeping regulations, and to report OSHA summaries of workplace injuries and illnesses (OSHA Form 300A), which is required under both the existing and proposed revised versions of the ERR. Of course, OSHA still requires employers to produce these forms to OSHA as part of an inspection.
1 29 C.F.R. § 1904.41(a)(1).
2 29 C.F.R. § 1904.41(a)(2).
3 29 C.F.R. § 1904.41(c).
5 29 C.F.R. § 1904.41(c)(2).
6 29 C.F.R. § 1904.41(c)(1).
7 Occupational Safety and Health Administration, Tracking of Workplace Injuries and Illnesses, Fed. Reg. 36494 (July 30, 2018), available at https://www.federalregister.gov/documents/2018/07/30/2018-16059/tracking-of-workplace-injuries-and-illnesses.