OSHA Delays Electronic Record-Keeping Rule

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Update: On June 27, OSHA proposed a Dec. 1 compliance deadline for its electronic record-keeping rule. The agency said that the extension will provide the new administration with an opportunity to review the rule prior to its implementation and will give employers time to familiarize themselves with the electronic reporting system—which OSHA said will not be available until Aug. 1. The agency is accepting public comments on the proposed extension until July 13.

The Occupational Safety and Health Administration (OSHA) plans to postpone a record-keeping rule that would have required certain employers to electronically submit injury and illness data to the agency starting on July 1.

OSHA announced on its website on May 17 that it "is not accepting electronic submissions at this time and intends to propose extending the July 1, 2017 date."

The news of the delay didn't come as a surprise, given that there was no indication that OSHA had even created a portal for employers to submit electronic data, said Patrick Miller, an attorney with Sherman & Howard in Denver.

The injury and illness reports that employers would have to submit electronically are already recorded on forms that employers keep at their worksite. The rule is controversial because some of the collected information would be made available to the public on the agency's website.

OSHA has said that "making injury information publicly available will 'nudge' employers to focus on safety."

In two ongoing lawsuits challenging the rule, business groups argued that public disclosure would unreasonably harm employers.

It's possible that the agency is waiting to see what happens in these court cases and with other activity surrounding the rule, said Matthew Linton, an attorney with Ogletree Deakins in Denver. He added that neither case has gone very far yet through the litigation process.

[SHRM members-only how-to guide: How to Determine Regulatory Requirements for Safety]

An OSHA spokeswoman said that the agency delayed the rule to give the agency time to address employers' "concerns about meeting their reporting obligations," The Washington Post reported.

The good news for employers is that this could be a sign that the rule will go away entirely, but until a final decision has been made, employers should be prepared to comply, Miller said.

There's no harm in taking reasonable steps to prepare for the rule to take effect, Linton said. He noted that the electronic submission aspect of the rule might live on even if the data isn't ultimately posted for public viewing.

Anti-Retaliation Rules Remain

The electronic record-keeping rule also contains anti-retaliation provisions that say employers can't discourage workers from reporting injuries or illnesses. Employers must inform workers of their right to report work-related injuries and illnesses, and they can't retaliate against employees for doing so.

OSHA guidance on the anti-retaliation provisions says that employers must establish reasonable procedures for reporting injuries. The guidance also puts certain limitations on safety incentive programs and drug-testing policies that might deter workers from reporting accidents.

It's important for employers to note that the anti-retaliation provisions went into effect in December 2016, and the electronic filing delay doesn't change that, Linton said. "If employers haven't been complying with those aspects of the rule, they need to start."

He said it's possible that employers might not see much of an enforcement effort, but OSHA investigators may continue to implement current enforcement procedures until they are otherwise instructed.

Business groups are challenging the anti-retaliation provisions in court, arguing that OSHA exceeded its authority when it created these aspects of the rule. Although a court refused to grant a preliminary injunction that would have temporarily blocked the provisions, it is still possible that the court could ultimately deem them unlawful.

Linton said employers should keep an eye on the record-keeping section of OSHA's website for any changes.

More OSHA Delays

The electronic record-keeping rule isn't the only Obama-era OSHA rule that has been revoked or delayed since President Donald Trump's inauguration.

In April, Trump signed a resolution to permanently block the so-called Volks rule, which effectively extended OSHA's authority to issue citations for record-keeping violations from six months to five years. 

Earlier this year, the new administration delayed implementation of a workplace-safety rule related to beryllium dust to May 20. OSHA also announced on April 6 that it will delay enforcement of a rule to limit silica exposure on construction sites from June 23 to Sept. 23.

The agency said it needs more time to develop educational material for employers and to train compliance officers.

 

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