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Cal/OSHA Issues Regulation on Recordkeeping

Thursday, October 25, 2018

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California has now put its Division of Occupational Safety and Health on par with the federal Occupational Safety and Health Association’s Improve Tracking of Workplace Injuries and Illnesses Rule.

What Happened

On the federal level, the recordkeeping rule went into effect partially in 2016 and fully in 2017 after repeated delays; among other provisions, the regulation requires employers with more than 250 employees, or smaller firms in certain “high-risk” industries such as construction, to electronically submit workplace injury and illness data to OSHA. The data in question was already kept by employers, but was not previously submitted electronically.

© iStock.com / patrickbanks

California has now put its Division of Occupational Safety and Health on par with the federal Occupational Safety and Health Association’s Improve Tracking of Workplace Injuries and Illnesses Rule.

When the rule went into effect, it was also mandated that state plans adopt a substantially identical requirement for e-recordkeeping within six months after its publication. Initially, OSHA said that employers who were in states in which state programs had not yet adopted the rule could forego submitting records.

In April, however, OSHA announced that was an error and said that it informed state plans that all employers they cover will be expected to comply with the rule for calendar year 2017, with a deadline of July 1, 2018, for reporting.

Employers in states that already adopted such a rule, and those that do not have their own state plan, were required to report calendar-year 2016 injuries and illnesses already.

On top of that, state OSHA plans were receiving mixed signals from the Trump administration in terms of whether the recordkeeping rule would be amended or even stand at all.

At the time of that April announcement to employers, seven state plans still had not adopted a recordkeeping equivalent including California, Maryland, Minnesota, South Carolina, Utah, Washington and Wyoming.

Since then, Minnesota, South Carolina and Utah have adopted plans; Maryland and Wyoming have notices that they have “not yet” adopted a plan; and Washington still maintained that it will not require electronically submitted data.

California

Last month, California Gov. Jerry Brown signed into law California Assembly Bill 2334, which makes changes to California law as a whole and imposes its own version of the recordkeeping rule.

Ed Brown, public domain via Wikimedia Commons

When the rule went into effect, it was also mandated that state plans adopt a substantially identical requirement for e-recordkeeping within six months after its publication. Initially, OSHA said that employers who were in states in which state programs had not yet adopted the rule could forego submitting records.

AB 2334 maintains the requirement for large employers to submit 300 and 301 data, and it requires Cal/OSHA to monitor rulemaking at the federal level and if federal OSHA has eliminated to substantially diminished its recordkeeping rule, Cal/OSHA is required to convene an advisory committee within 120 days to evaluate any chances necessary.

It also goes a step further and harkens back to an Obama Administration midnight Volks Rule, in which federal OSHA adopted a five-year statute of limitations for recordkeeping violations. The Trump administration quickly repealed this rule, and multiple court decisions held that employers cannot be cited for failing to record injuries and illnesses more than six months before citations were issued.

AB 2334 keeps the six-month time period, but defines “an occurrence” of a recordkeeping violation as continuous until the recordkeeping is correct, or the division discovers the violation, or the duty to comply the violated requirement ceases to exist.

“Federal OSHA comes up with this idea and then abandons it … but then (California Division of Occupational Safety and Health) says ‘we’re going to do what you guys said you were going to do,’” Jason Mills, a Los Angeles-based partner at Morgan, Lewis & Bockius LLP, which represents employers challenging OSHA citations, told Business Insurance.

“It’s not really surprising. This is Cal/OSHA and this is their opportunity to assert their independence. We all thought we had avoided these requirements through the recent changes at fed OSHA, but obviously not in California.”

   

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

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