OSHA Scales Back Electronic Record-Keeping Rule

The Occupational Safety and Health Administration (OSHA) recently issued a final rule eliminating the requirement that worksites with 250 or more employees electronically submit certain injury and illness information to the agency.

"It's essentially the same thing as the proposed rule OSHA presented last summer," said John Martin, an attorney with Ogletree Deakins in Washington, D.C.

The new OSHA reporting rule is considered a deregulation, noted Mark Kaster, an attorney with Dorsey & Whitney in Minneapolis. Large employers will have to submit information from only one form instead of three.  

The new rule will allow OSHA to improve enforcement and compliance-assistance programs, protect workers' privacy and decrease the reporting burden on employers, according to an agency announcement.

Electronic Filing

The Improve Tracking of Workplace Injuries and Illnesses rule requires employers covered by OSHA's record-keeping regulations to electronically submit reports to the federal government. Certain establishments with 20 to 249 employees are required to submit only OSHA Form 300A, which is a summary of workplace injuries and illnesses that many employers are required to post in the workplace from Feb. 1 until April 30 of each year. 

Larger establishments with 250 or more employees were supposed to begin electronically submitting data from Form 300 (the injury and illness log) and Form 301 (the incident report for each injury or illness), in addition to Form 300A. However, OSHA announced in 2018 that it would not be accepting that information in light of anticipated changes to the rule.

[SHRM members-only how-to guide: How to Complete the OSHA Form 300]

The final rule was published Jan. 25 and eliminated the requirement that large employers submit detailed 300 and 301 forms. But they still must submit their Form 300A data. The deadline to submit 2018 information is March 2.

The new rule lessens the reporting requirements, which is good news for employers, Kaster said.  

OSHA also amended the record-keeping rule to require covered employers to electronically submit their employer identification number with Form 300A, which "will make the data more useful for OSHA and BLS [the Bureau of Labor Statistics] and could reduce duplicative reporting burdens on employers in the future," the agency said.

Drug Testing and Safety Incentives

Nothing in the Jan. 25 final rule addressed the electronic record-keeping rule's controversial anti-retaliation provisions that took effect in 2016 and that prohibit employers from having policies or practices that discourage workers from reporting workplace injuries and illnesses. In particular, OSHA regulations placed limits on post-accident drug testing and safety-incentive programs that may deter reporting.

However, the agency issued new guidance in October 2018 clarifying that the regulations don't completely prohibit workplace safety-incentive programs or post-incident drug testing.

Specifically, random drug testing and testing to determine the root cause of a workplace incident are not prohibited, explained Tressi Cordaro, an attorney with Jackson Lewis in Washington, D.C. The memo did recommend that if an employer conducts drug testing because of a workplace incident, the employer "test all employees whose conduct could have contributed to the incident, not just employees who reported injuries." The agency also acknowledged that incentive-based programs promote workplace safety and health and clarified that certain programs are permissible.

"While OSHA issued a softer interpretation last fall that may provide a peace of mind for some, these regulations remain on the books," Martin said.

Employers may need to review their programs for compliance, Kaster noted. There may be good reasons to have a drug-testing policy or a safety-incentive program. However, employers must be careful when implementing such programs because OSHA will evaluate whether they are misused in the workplace, he said.

What's Next?

The Jan. 25 final rule was criticized by worker advocates and business groups alike, with some saying the rollback went too far and some saying it didn't go far enough.

"While these revisions are generally supported by employers, not all interested parties support the revisions to the Obama-era regulation," Cordaro noted.

Marc Freedman, vice president of employment policy at the Chamber of Commerce, told Politico's Morning Shift that the Chamber of Commerce is "disappointed" with the rule because it doesn't address all the privacy concerns raised by business groups.

Rep. Bobby Scott, D-Va., said President Donald Trump's administration "is weakening our ability to identify and address issues that threaten the lives and livelihoods of workers and their families."

Unions opposed to these changes will almost certainly file challenges in court to overturn them, Martin said. In the meantime, affected employers should start preparations to electronically file their 300A forms with OSHA by the March 2 deadline.