The E-Recordkeeping and Anti-Retaliation Rule requires employers with large establishments (250 or more employees) and small establishments (20 to 249 employees) in certain “high hazard industries” to submit injury and illness data to OSHA through an electronic portal. An OSHA fact sheet published in June 2016 explains the new reporting requirement:
- Establishments with 250 or more employees that are currently required to keep OSHA injury and illness records must electronically submit information from Form 300, Log of Work-Related Injuries and Illnesses; Form 300A, Summary of Work-Related Injuries and Illnesses; and Form 301, Injury and Illness Incident Report.
- Establishments with 20 to 249 employees that are in certain industries that have historically high rates of occupational injuries and illnesses must electronically submit information from Form 300A.
For purposes of the December 15 deadline, employers must submit information from Form 300A on a per-establishment basis. Whether an establishment is required to submit its injury data depends on the number of employees at the establishment, which is defined as “a single physical location where business is conducted or where services or industrial operations are performed.” In other words, the data-submission rule requires a location-by-location determination of:
- Whether and what to report based on the number of employees (peak employment at any point during the year, including temporary and part-time employees); and
- Whether that number meets one of the two threshold levels for reporting (i.e., 20 to 249 employees or 250 employees).
For the lower threshold, employers also must determine whether an establishment is in a high-hazard industry covered by the North American Industry Classification System code.
The rule, which was finalized during the Obama administration in May 2016, was immediately challenged in court by industry opponents. The case was ultimately stayed (halted) by a federal court in early July 2017, and the court ordered OSHA to provide a status update on the rule every 90 days. In the first status update submitted on October 10, the Trump administration indicated that it plans to revise or even rescind the rule. For the time being, however, the December 15 deadline remains in force.
“Therefore, if employers have not already done so, they should immediately evaluate whether the rule applies to any or all of their workplaces, get familiar with and set up an account in OSHA’s Injury Tracking Application (the portal that will receive the injury data), and submit covered injury data by December 15, 2017,” according to an alert by Eric J. Conn and Dan C. Deacon, contributors to Federal Employment Law Insider and OSHA defense attorneys at Conn Maciel Carey.
The alert points out that historically, employer injury logs have remained in-house unless OSHA opened an enforcement inspection at a workplace or the U.S. Bureau of Labor Statistics (BLS) requested an employer’s participation in its annual injury data survey. “Now, OSHA’s new rule requires hundreds of thousands of employers to proactively submit these historically private records to OSHA, which in turn may publish the data online for all the world to see,” the alert says.
OSHA originally expressed an intent to publish the data online for public consumption. Currently, however, it is unclear whether the agency still intends to publish the data online. Nevertheless, employers should remain vigilant when calculating the data because OSHA will use the data to target its enforcement resources. Also, there is still a possibility that unions, plaintiffs’ attorneys, media outlets, competitors, contracting partners, insurers, and members of the public will be able to access the information through Freedom of Information Act requests, even if OSHA does not publish it.
The Conn Maciel Carey alert further explained that the first status update provided to the court in the legal challenge reported that OSHA is continuing to develop a Notice of Proposed Rulemaking to “reconsider, revise, or remove provisions of the [rule].”
“This tells us two things,” the alert says. “First, OSHA appears to be following through on its stated intent to revisit the E-Recordkeeping Rule. Second, it appears that the manner in which OSHA revisits the rule will be significant.”
Finally, the alert points out that employers with establishments in certain state plan states are not required to submit injury and illness data by the December 15 deadline. Several states that operate their own OSHA-approved state occupational safety and health programs haven’t adopted a final version of OSHA’s rule, and therefore, the electronic data submission requirement is not in effect.
Specifically, employers in California, Maryland, Minnesota, South Carolina, Utah, Washington, and Wyoming are not required to submit their 2016 injury data to OSHA (or their respective state occupational safety and health programs) this year.