Employers may be relieved to hear that OSHA briefly extended the compliance deadline for its new “Improve Tracking of Workplace Injuries and Illnesses” Rule’s electronic reporting requirements (“Rule”) (also commonly referred to as the “Electronic Reporting Rule”) to December 15, 2017. OSHA initially set July 1, 2017 as the submission deadline but later extended the deadline to December 1, 2017 to give employers more time to familiarize themselves with the online database.
The Rule requires electronic reporting of injury and illness data, in addition to recording this information on onsite OSHA Injury and Illness forms 300A (Summary of Work-Related Injuries and Illnesses), 300 (Log of Work-Related Injuries and Illnesses) and 301 (Injury and Illness Incident Report). OSHA has stated that some of this data will be made publicly available on its website.
In addition to the electronic reporting requirements, the Rule also contains anti-retaliation protections. These protections require employers to inform employees of their right to report work-related injuries and illnesses free from retaliation and also prohibit employers from retaliating against employees who report work-related injuries and illnesses and from implementing reporting procedures that would deter or discourage employees from reporting such injuries and illnesses.
Who Must Comply? The Rule applies to covered “establishments,” defined as “a single physical location where business is conducted or where services or industrial operations are performed.” 29 C.F.R. §1904.46. There are two categories of establishments: (1) establishments that had 250 or more employees at any time during the previous calendar year, and (2) establishments that had between 20 and 249 employees at any time during the previous calendar year and are classified as belonging to certain industries with historically high rates of occupational injuries and illnesses. 29 C.F.R. § 1904.41(b). These certain high-risk industries include construction, manufacturing, utilities, department stores, and even dry-cleaning and laundry services. An employer can be composed of one or more establishments.
How to Comply? All covered establishments must electronically submit information from their 2016 Form 300A by December 15, 2017 via OSHA’s Injury Tracking Application (ITA) - Electronic Submission of Injury and Illness Records.
For 2018, establishments in the first category must electronically submit information from their 2017 OSHA Form 300A, as well as Form 300 and Form 301 by July 1, 2018. Establishments in the second category are required to electronically submit Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, such information must be submitted by March 2.
OSHA’s Injury Tracking Application provides three submission options. Employers have the option of manually entering data into a web form; uploading a CSV file, which is similar to an Excel spreadsheet, to process single or multiple establishments at the same time; or, for those employers that have automated recordkeeping systems, employers can submit such data electronically using an application programming interface.
Since its passage, the Rule has engendered pushback from industry groups who argue that it exposes businesses to significant reputational harm, all without any evidence to support that publicly disclosing such information on OSHA’s website will have any effect on workplace safety and health.
It appeared as though the Trump Administration was on track to possibly rescind the Rule when, earlier this year, OSHA stated in its Notice of Proposed Rulemaking, extending the prior submission deadline, that it intended to release a separate proposal to “reconsider, revise, or remove” other portions of the Rule. This recent deadline extension continues to raise questions as to whether the final Rule will be amended or rescinded, especially since OSHA specifically stated in its press release announcing the recent extension, that it was currently reviewing other provisions of the Rule and intends to publish another notice of proposed rulemaking to reconsider, revise, or remove portions of the Rule in 2018.
Despite the Rule’s current state of flux, employers should nevertheless be prepared to comply by December 15, 2017. Employers should therefore familiarize themselves with OSHA’s online database and the various options with which they have to report the required information.
Should you have any questions regarding OSHA’s Electronic Reporting Rule, please feel free to contact Keith Pryatel or any other K|W|W attorney.