In May of 2016, the final rule “Improve Tracking of Workplace Injuries and Illnesses” was issued by the Occupational Safety and Health Administration (OSHA) to revise its recording and reporting requirements, and became effective on January 1, 2017.
This year, all covered establishments must electronically submit 300A form data for the 2017 calendar year by July 1, 2018.
How will organizations submit their data to OSHA?
OSHA provides its Injury Tracking Application (ITA) to allow safety professionals to electronically submit their 300A data. Employers can choose between two methods to submit their recordkeeping data: manually or through a batch submission process.
To enter your data manually, you first need to add your establishments to the application by creating profiles for them. Once you have set up your establishments, you will then be able to enter and submit OSHA 300A data for each one.
To enter your data in a batch process, employers can upload a CSV file containing 300A data for many establishments at once. This method is ideal for organizations that need to submit data for multiple establishments. For more information on how to use the ITA,
What are the other provisions of this rule?
In addition to requiring the electronic submission of recordkeeping data, the final rule includes provisions that prohibit employers from retaliating against workers for reporting a fatality, injury, or illness.
Section 11(c) of the Occupational Safety and Health Act already prohibits retaliation against employees who report a workplace incident. However, OSHA may not act under that section unless an employee files a complaint with OSHA within 30 days of the retaliation.
Under the new final rule, OSHA will be able to cite an employer for retaliation even if the employee did not file a complaint, or if the employer has a program that deters or discourages reporting through the threat of retaliation.
This new provision is important because it gives OSHA the ability to protect workers who have been subject to retaliation, even when they cannot speak up for themselves.
However, OSHA’s interpretations of the anti-retaliatory provisions of the final rule have also generated some controversy, as the agency has concluded that post-incident drug and alcohol testing deter employees from reporting injuries and illnesses. According to the comments provided in the final rule, OSHA explains that post-injury drug and alcohol testing policies must be limited to situations in which there is a reasonable possibility that an employee’s drug or alcohol use was a contributing factor to a reported incident.
In addition, under the rule, safety incentive programs may be viewed as retaliatory if they offer benefits to employees or workforces who do not report injuries and illnesses.
What has been the response to this rule?
Since the final rule was published, several court cases have emerged challenging the legality of the final rule.
Shortly after the final rule took effect, the National Association of Home Builders (NAHB), backed by several other industry groups, filed a lawsuit against OSHA in the U.S. District Court. This lawsuit claims that OSHA lacks the authority to issue the rule’s anti-retaliation provision, in addition to opposing the public posting of employers’ injury and illness logs.
The NAHB expressed concerns the public posting will expose businesses to reputational harm with no evidence that it would effectively improve workplace safety. Several public health advocacy groups filed a motion in March to intervene in the lawsuit, wishing to act as defendants alongside OSHA. Among these public health groups are Public Citizen, which argues the rule will improve data collection which will be used to identify trends and improve worker protections. The case is currently waiting to be reviewed by the courts.
In July of 2016, Associated Builders and Contractors and seven other organizations also filed a lawsuit to block the rule from going into effect.
The lawsuit similarly focused on the anti-retaliation provisions that prohibit employers from using drug testing after an incident to retaliate against workers who report injuries or illnesses. The organizations claim the provision is as an overreach of authority by unlawfully limiting safety incentive programs and routine post-accident drug testing.
The proceedings of both of these suits have been stayed while OSHA determines whether to reconsider, revise, or remove portions of the rule at issue in these cases.
What does the future hold?
In November of 2017, OSHA stated that it will issue a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the final rule.
OSHA had planned that the NPRM would be forthcoming in December of 2017. However, at the time this article was written, the agency was still drafting the NPRM.
This rulemaking may have stalled because OSHA is still operating under temporary leadership. While former FedEx safety executive, Scott Mugno, was nominated as Assistant Secretary of OSHA in November of 2017, to date, his confirmation by the senate is still pending and a hearing has not yet been scheduled.
Despite this delay, establishments must still be prepared to submit data from their 2017 Form 300A by the upcoming July 1 deadline.
Any further updates regarding the Electronic Recordkeeping rule will be posted to the OSHA website here: https://www.osha.gov/recordkeeping/index.html.