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May 22, 2017

Cloudy Future for Electronic Submission of OSHA Recordkeeping Data

... but not electronically, yet.
In May, 2016, OSHA issued a new rule to improve tracking of workplace injuries and illnesses, which included provisions for employers to submit recordkeeping data electronically. In addition to requiring the electronic submission of recordkeeping data, the final rule also includes provisions that prohibit employers from retaliating against workers for reporting a fatality, injury, or illness.

Although electronic submissions were scheduled to start July 1, 2017, for employers in certain industries with more than 250 employees, there is no active tool to submit injury data to OSHA. OSHA's recordkeeping page has this statement:

"OSHA is not accepting electronic submissions of injury and illness logs at this time, and intends to propose extending the July 1, 2017 date by which certain employers are required to submit the information from their completed 2016 Form 300A electronically. Updates will be posted to this webpage when they are available."

So what's the holdup?


Since the final rule was published, several court cases have emerged challenging the legality of the final rule - most related to the retaliation provisions. The rule prohibits employers from discouraging workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster. It also clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses.

Legal challenges focus on definitions and application of the retaliation rules

A recent article published by OH&S magazine considers the future of the recordkeeping rule and outlines current legal challenges to the rule, including:

The National Association of Home Builders (NAHB) filed a lawsuit in the U.S. District Court claiming that OSHA lacks the authority to issue the rule’s anti-retaliation provision, in addition to opposing the public posting of employers’ injury and illness logs.

The NAHB believes that public posting will expose businesses to reputational harm with no evidence that it would effectively improve workplace safety. Several public health advocacy groups filed a motion in March to intervene in the lawsuit, wishing to act as defendants alongside OSHA. Among these public health groups are Public Citizen, which argues the rule will improve data collection which will be used to identify trends and improve worker protections. The case is currently waiting to be reviewed by the courts.

In July of 2016, Associated Builders and Contractors and seven other organizations also filed a lawsuit to block the rule from going into effect. The lawsuit focused on anti-retaliation provisions that prohibit employers from using drug testing after an incident to retaliate against workers who report injuries or illnesses. The organizations claim the provision is as an overreach of authority by unlawfully limiting safety incentive programs and routine post-accident drug testing. The motion was denied by the U.S. District Court in late November, and decisions on the legality of the rule have been delayed until after the ruling’s first submission deadline on July 1, 2017.

Add a new administration and labor secretary to the mix, and the future of the “Improve Tracking of Workplace Injuries and Illnesses” rule becomes increasingly cloudy. Stay tuned...

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