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A Procrastinator's Guide to OSHA's Injury Rule

Thursday, December 7, 2017

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The submission deadline of injury reporting records to comply with the Occupational Safety and Health Administration's new electronic recordkeeping regulation is just around the corner: Dec. 15.

© iStock.com / patrickbanks

The submission deadline of injury reporting records to comply with the Occupational Safety and Health Administrations E-Recordkeeping and Anti-Retaliation Rule is just around the corner: Dec. 15.

While it was officially announced in May 2016, several delays, lawsuits, an administration change and a potential security breach have impacted the rule, officially known as the Final Rule to Improve Tracking of Workplace Injuries and Illnesses. So, if you’re confused about what is being enforced and whether or not you have to submit records by this time next week, look no further.

I Already Have to Keep Injury Records, Right? How is this Different?

The new rule, which took effect Jan. 1, requires certain employers to electronically submit the injury and illness data that they were already required to log into the Injury Tracking Application.

“This electronic recordkeeping rule creates for the first time an obligation for thousands and thousands of employers to share their data with OSHA,” said Eric Conn, a founding partner of Conn Maciel Carey and chair of the firm’s national OSHA Workplace Safety Group

“Historically, it’s been internal. You only share with the government in the context of an active enforcement inspection, or a few employers every year are randomly selected and rotate for the injury survey. Now, you’re handing the data over to the enforcement agency. It’s a big deal because it’s new. Simply.”

Does Everyone Have to Submit Their Records?

No. For the Dec. 15 deadline, establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit information from their 2016 Form 300A, and establishments with 20-249 employees in certain “high-risk” industries—such as construction—must submit information from their 2016 Form 300A.

Just because you fill out a 300A, does not mean you are required to submit your data. You must fall into one of these categories.

Conn noted that the word “establishments” can also lead to a gray area that could exempt more businesses than it readily seems.

“It also depends on how you identify employers, how you group establishments—if you have mobile crews and things like that. There are strategic ways to think about your establishments that may result in being excluded from this rule.”

Ed Brown, public domain via Wikimedia Commons

For the Dec. 15 deadline, establishments with 250 or more employees in industries covered by the recordkeeping regulation must submit information from their 2016 Form 300A, and establishments with 20-249 employees in certain “high-risk” industries—such as construction—must submit information from their 2016 Form 300A.

There are also several states that have their own occupational safety programs and have not adopted the electronic recordkeeping rule. Those states are: California, Maryland, Minnesota, South Carolina, Utah, Washington and Wyoming.

How Will OSHA Know If I Don’t Submit?

There has been debate among industry professionals about how effective OSHA is in enforcing its regulations. Conn says, however, that the electronic recordkeeping rule will be all too easy for the administration to enforce.

“This requirement is a very public thing, a very visible thing to OSHA," he explains. "If OSHA knows that you and your company exist and they know you meet the requirements to report and they see that it has not been submitted, it is a very visible and obvious violation. If I’m OSHA I’m going to take a low-level administration person, and have them go through a check who has complied and who hasn’t."

Conn said this rule will most likely be treated as all other regulatory requirements, in which failing to comply the first time would have a maximum penalty of around $12,600, but would more likely be a fine of $1,000-$5,000. The bigger issue, of course, comes when there are multiple violations or violations at multiple locations.

What About President Trump? Aren’t There Lawsuits at Play Here, Too?

In June, OSHA filed motions to pause both cases against the rule, citing the fact that the agency decided to propose additional rulemaking, per Labor Secretary Alexander Acosta. According to the motions, OSHA is considering changes that "could directly affect the scope of the rule, and therefore the claims at issue" in each suit.

The federal lawsuit in Oklahoma, filed in January by a number of groups including the National Association of Home Builders, argues that OSHA overstepped its authority in asking employers to turn over injury information to be published online, and that the rule creates an unnecessary paperwork burden.

The Texas suit, filed in 2016 by Texo (a state group that combines the Associated Builders and Contractors and Associated General Contractors) and a number of other organizations and businesses, deals with a number of provisions, including those that have already gone into effect restricting certain practices that could constitute retaliation for employees who report injuries.

The Texas suit has been administratively closed and the District Court Judge in the federal suit (backed by President Donald J. Trump) granted the stay, but also ordered OSHA to submit a status update about its reconsiderations to the rule every 90 days.

The first update was submitted in October and read, in part:

OSHA “continues to develop a Notice of Proposed Rulemaking (‘NPRM’) to ‘reconsider, revise, or remove provisions of the [Rule],’” as announced in Pres. Trump’s First Regulatory (and Deregulatory) Agenda issued on July 20, 2017.  OSHA further explained that OSHA has “drafted substantial portions of the NPRM, including draft regulatory text and a summary and explanation of the proposed changes,” and that “OSHA’s economists have made significant progress on the economic analysis” and continue to refine it.

Conn says that the reference to economic analysis is telling.

“I think there appears to be no question that they are meeting the intent that they are going to take a hard look. This says that they’ve decided to amend or possibly rescind,” Conn said.

© iStock.com / ohdub

Specific verbiage in the rule that drew concern was the restriction of post-incident drug testing and the caution against incentive programs, which are only unlawful if they’re used with the intent to discourage reporting, Conn notes.

The next update is due Jan. 10, but Conn says that with the holidays and the new administrator’s confirmation, he estimates that the new update will not be drastically different from the one in October.

What About the Retaliation Part of ThisIs That Being Enforced?

Yes.

“It is in effect and OSHA is out actively enforcing,” Conn said. “I’m aware of at least one enforcement action that has been brought and at least a dozen inspections that are ongoing.”

The retaliation part of the rule puts another layer of enforcement on Section 11(c) of the Occupational Safety and Health Act, which prohibits any person from discharging or discriminating against an employee who reports a fatality, injury or illness.

“However, OSHA may not act under that section unless an employee files a complaint with OSHA within 30 days of the retaliation,” OSHA’s FAQ states. “In contrast, under the final rule, OSHA will be able to cite an employer for retaliation even if the employee did not file a complaint, or if the employer has a program that deters or discourages reporting through the threat of retaliation.”

Specific verbiage in the rule that drew concern was the restriction of post-incident drug testing and the caution against incentive programs, which are only unlawful if they’re used with the intent to discourage reporting, Conn notes.

What if I Am Still Unsure?

Review the rule and FAQ list for yourself here and here. Conn notes that it is worth double checking with legal counsel or an OSHA office and understanding whether you are covered by the rule.

   

Tagged categories: Accidents; Government; Health and safety; OSHA; OSHA; Regulations; Safety

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