If you go to OSHA’s Electronic Recordkeeping page, and hit the Electronic Submission section, you’ll be greeted with this message:
“OSHA Injury and Illness Recordkeeping and Reporting Requirements”
“On July 30, 2018 the Occupational Safety and Health Administration (OSHA) issued a Notice of Proposed Rulemaking (NPRM) to eliminate the requirement to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses), and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees that are currently required to maintain injury and illness records. These establishments would be required to electronically submit information only from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). In addition, OSHA is proposing to require covered employers to submit their Employer Identification Number (EIN) electronically along with their injury and illness data submission.”
The site then goes on to summarize the Recordkeeping Requirements as they currently stand including:
- Recordkeeping Requirements;
- Maintaining and Posting Records;
- Updated Electronic Submission of Records; and
- Severe Injury Reporting/
OSHA, in its Notice of Proposed Rulemaking (NPRM), has “preliminarily determined” that the risk of disclosure of information contained in OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report), the costs to OSHA of collecting and using the information and the reporting burden on employers are “unjustified given the uncertain benefits of collecting the information.” The proposed rule eliminates the requirement to file the Form 300 and 301 for establishments with 250 or more employees. These large employers will still be required to electronically file the OSHA 300A summary of work-related injuries and illnesses. OSHA submits that this proposed change will maintain safety and health protections for workers while also reducing the burden to employers of complying with the current rule.
Purpose of the Proposed Rule Change
The purpose of the proposed change is to eliminate the requirement that establishments with 250 or more employees to electronically submit the Forms 300 and 301:
- For employers with 250 or more employees, OSHA would rescind the requirement to electronically submit information from the more detailed OSHA Forms 300 and 301. Only annual summary data, showing aggregate injuries for the year, would be collected electronically.
- The deadline for electronic submittal of those forms – July 1, 2018 – will not be enforced by OSHA without further notice while the proposed rule is under consideration. (Since the deadline to submit comments on the proposed rule is September 28, 2018, it is unlikely that OSHA will set a new deadline prior to December 1, 2018, and if the proposed rule becomes a final rule, no deadline will apply.)
What the Proposed Rule
The Proposed Changes do not address the Obama Administration OSHA’s position against most safety-based Incentive Programs, and the elimination of an employer’s ability to conduct automatic post-accident/incident drug testing.
OSHA 300A Logs, which summarize a year’s worth of injuries and illnesses without specifically identifying each instance, must still be submitted by employers in the following categories: (1) those having 250 or more employees in industries that are routinely required to keep I&I records; (2) those with 20 to 249 employees in certain designated industries (see 28 CFR 1904.41 Appendix A for the list of designated industries); and (3) employers who have been notified by OSHA to electronically submit such data, regardless of their size.
The rule does not change who must keep these records; it only changes who must submit them to OSHA. Employers required to keep such records still would be required to produce them to OSHA upon request. In practice, though, this is a vastly smaller number of companies, as OSHA typically requests such data only for particular reasons, such as based on specific complaints or incidents.
Summary of the Proposed Rule Change
In the proposed rule, OSHA notes that Form 301 requires the collection of sensitive information about each individual worker’s job-linked illness or injury, information an employer must collect with or without the worker’s consent. “While some of the information is likelier to be regarded as particularly sensitive—namely, descriptions of injuries and the body parts affected—most of the form’s questions seek answers that should not be lightly disclosed, including:”
- Was employee treated in an emergency room?
- Was employee hospitalized overnight as an in-patient?
- Date of birth?
- Date of injury?
- What was the employee doing just before the incident occurred? Describe the activity, as well as the tools, equipment, or material the employee was using. Be specific.
- What happened? Tell us how the injury occurred.
- What was the injury or illness? Tell us the part of the body that was affected and how it was affected; be more specific than “hurt,” “pain,” or “sore.”
- What object or substance directly harmed the employee?
In the May 2016 final rule (81 Fed. Reg. 29624), the recordkeeping regulation was revised to require establishments with 250 or more employees to electronically submit information from the OSHA Forms 300, 300A, and 301 to OSHA annually. Individual injury and illness case information from these forms could be disclosed to third parties pursuant to FOIA requests from the public, thereby endangering worker privacy.
The NPRM proposes to amend OSHA’s new electronic recordkeeping regulation by rescinding the requirement for establishments with 250 or more employees to electronically submit information from the OSHA Forms 300 and 301, to protect sensitive worker information. OSHA also admits that it has not devised a plan for how it would “collect, process, analyze distribute, and programmatically apply” this information in a meaningful way to justify its collection.
Employer Takeaways - What Do I Do Now?
First, if you did not submit data yet by the July 1, 2018 deadline for whatever reason, you might decide to hold off on doing so while the rulemaking is pending. If the rule is finalized as proposed, you may never need to submit.
OSHA says that it “will not enforce this [July 1, 2018] deadline without further notice while this rulemaking is underway.” It does not elaborate on what this means, however, beyond the idea that it will not issue citations for failure to submit during the rulemaking.
The spirit of this statement seems to be a notice that companies need not now rush to comply. But, what if the rulemaking fails to realize the promises of the proposed rule? Will companies that delayed face citations or even willful allegations? Presumably not though OSHA could have been clearer.
Second, you can comment on the proposed changes. The comment deadline is September 28, 2018. Comments may be submitted electronically at www.regulations.gov.
- OSHA seeks comment on this proposal, particularly on its impact on worker privacy, including the risks posed by exposing workers’ sensitive information to possible FOIA disclosure. Comments, due on September 28, 2018, may be submitted to docket number OSHA-2013-0023.
- In anticipation of submission of Form 300 and 301s, many employers found problems with their records including over and under reporting and many citable technical errors. Continue improving and cleaning up Recordkeeping.
- Stay abreast of the various legal challenges which could change the equation.
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