301.519.9237 exdirector@nesaus.org

1.31.19 – NSBA –

Last week, OSHA published a final rule eliminating the requirement for firms with 250 or more employees to electronically submit their log of work-related injuries.

On Jan. 24, the Occupational Safety and Health Administration (OSHA) published its final electronic recordkeeping rule changes to its 2016 injury and illness recordkeeping regulation. As the agency proposed in July, larger employers will not have to electronically submit details about their employees’ workplace injuries and illnesses. The rule was published in the Federal Register on Jan. 24 and will take effect after 30 days.

The final rule eliminates the requirement for establishments with 250 or more employees to electronically submit to OSHA each year information from OSHA Forms 300 (Log of Work-Related Injuries and Illnesses), and Form 301 (Injury and Illness Incident Report). However, these establishments will still be required to maintain these records on-site and will also be required to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). Employees still must record, retain and, when required, report the information for this form as they have in the past.

The regulation was amended to require an Employer Identification Number (EIN) in electronic submissions in order to enhance OSHA’s ability to track and analyze injuries and illnesses. The agency also clarified that the final rule does not prevent employers from drug testing or from initiating incident-based incentive programs as long as those programs aren’t used to penalize employees for reporting work-related injuries or illnesses.

One of the biggest objections to the original rule, when proposed, was that the information included on the more detailed forms would compromise both employee and employer privacy since the forms would be available to the public. Construction industry trade groups were also concerned that some of the published information, like how many hours employees worked, would give companies an unfair glimpse into their competitors’ operations.

When OSHA proposed an amended regulation, officials said that even though employee names would not be included in the information that employers reported, there was a risk that someone could trace an injury or illness back to a specific individual. Combined with the cost of agency implementation and the extra expense to employers, OSHA decided the rule’s cons outweighed the pros.

The most recent regulatory agenda projected the issuance of this final rule for June of this year, and it is unusual for an agency to be so far in front of its predicted timeline. Media reports indicate that labor unions are not happy with the process that unfolded leading up to finalization of the rule, particularly with regard to the impact that the recent government shutdown may have had on the Office of Information and Regulatory Affairs (OIRA). As this regulation has already been the subject of litigation, those close to the issue expect legal uncertainty to continue to surround this final regulation.