OSHA issued its final rule reversing major elements of the electronic injury and illness recordkeeping rules originally adopted during the Obama era.

The final rules eliminate the earlier requirement for employers to electronically submit Forms 300 and 301. The rule still requires employer establishments with 250 or more employees and with 20 to 249 employees in certain designated industries to electronically submit Form 300A annually.

The deadline for employers to file their reports covering 2018 injury data is March 2. Nothing in the final rules revokes an employer’s duty to maintain OSHA Forms 300 and 301 onsite for future OSHA inspection.

Employers also were obligated to post the 300A illness and injury form in workplaces by Feb. 1. That form is not filed with the agency, but penalties can accrue if it is not posted until April 30, and a copy retained for at least five years.

The agency proposed the new changes to the electronic reporting rule in July 2018. The Trump OSHA had responded to sweeping changes made in 2016 by the Obama-era agency.

At that time, OSHA decided 300 logs and 301 forms would be published on OSHA’s website, with employee names and some of their other personal information redacted. Employers noted reports
would include sensitive information about medical treatment, the nature of the injury or illness, a description of how the injury occurred and other personal data making it easy to identify the employee.

In addition, the 2016 rule called for publishing employer information on the Internet for all to see
consistent with agency’s policy at that time of using all opportunities for publicly “shaming” companies.

Employers also viewed the Obama-era rule as a generous gift to union organizers and tort lawyers seeking targets among private sector employers.

The AFL–CIO and other unions were not happy when the Trump OSHA proposed to reverse the Obama-era changes and they are expected to mount legal challenges against the final rules.

Several states that operate their own OSHA programs delayed implementing the earlier electronic recordkeeping rule due to the uncertainty surrounding it. Federal OSHA told employers in these state plans to submit 300A data even though they were not subject to the rule.

Last April, federal OSHA said employers in all state plan states must implement the recordkeeping rules. By the end of 2018, only three states hadn’t adopted the rules: Maryland, Washington and Wyoming.

As usual, California is different. Last year the state legislature adopted a new state law requiring Cal/OSHA to monitor the federal rulemaking and federal OSHA’s implementation of the electronic recordkeeping rule (AA, 12-15-18, P. 1).

If Cal/OSHA determines that federal OSHA has “eliminated” or “substantially diminished” the requirements for employers to submit injury and illness data, the state agency is charged with evaluating whether it believes changes are necessary in state regulation to protect those goals.

Another new California law seeks to undo an OSHA policy by changing the statute of limitations for citations or violations regarding recordkeeping requirements from six months after the violation occurs to either the date that the violation was corrected or the date the injury was discovered.

Some on the employer side believe the new rules did not go far enough. The scope of the change is much too small and fails to address most of industry’s concerns, according to Eric J. Conn and Daniel C. Deacon of the law firm of Conn Maciel Carey LLP.

“Remember that only workplaces with 250+ employees were ever going to have to submit 300 and 301 level data,” they note.

“By eliminating that one requirement on that one subset of workplaces affects the tiniest percentage of workplaces. Every employer that was required to submit injury data yesterday, is still required to submit injury data now, and most employers that were covered by this rule will be submitting the exact same data they were already required to submit.”

Conn and Deacon argue that OSHA should still add provisions to prevent the data that is collected from being published, or at least not published along with employer-identifying information, which is how OSHA’s sister Labor Department agency, the Bureau of Labor Statistics, has handled the injury data it has collected for decades.

They also urge OSHA to modify the size threshold from workplaces with 25 employees to 100 employees, which would unburden the really small employers currently affected by this rule. Modifying the definition of “high hazard industry” that swept thousands of small employers into the rule should be changed as well, the attorneys say.