The compliance deadline for Occupational Safety and Health Administration’s (OSHA) electronic injury and illness reporting rule has come and gone, and there is no mechanism in place for employers to electronically report work-related injuries and illnesses. On June 27, 2017, OSHA proposed moving the July 1, 2017 mandatory compliance deadline to Dec. 1, 2017. The window for public comment on the proposed delay closed on July 13th. At present, the “proposed delay” remains a “proposal,” but, even so, OSHA does not yet have the mechanism in place for compliance with the electronic reporting requirement.
For many years, OSHA required employers with 10 or more employees to keep a log of employees’ work-related injuries and illnesses, but most employers were not required to routinely submit them to OSHA. Only certain high-risk industries, such as construction, manufacturing and agriculture, were required to submit their records to OSHA by mail. In 2013, OSHA decided to move to an electronic reporting system and increase the number of employers required to submit their illness and injury logs to OSHA. Had the rule taken effect, establishments with 250 or more employees would have been required to submit their 2016 Form 300A by July 1, 2017. These same employers would have been required to submit all of their 2017 forms (300A, 300 and 301) by July 1, 2018. Smaller employers with 20-249 employees in moderate-risk industries, such as waste collection, residential care facilities and retail sales, would have been required to submit only the 300A on an annual basis beginning on July 1, 2017.
Though employers were supposed to comply with the electronic injury and illness reporting rule by July 1st of this year, OSHA announced in May that it would not be accepting electronic submissions by July 1st and that the submission portal was not completed. Some believe that the proposed delay signals that OSHA will revise the rule, or even revoke it completely.
If the rule takes effect, OSHA will make some company-specific data available on its public website with the goal of incentivizing employers to maintain workplace safety standards and reduce employee injuries. OSHA will aggregate the data of establishments with 20-249 employees but post company-specific data of employers with 250 or more employees. OSHA would not publish personally identifiable information of employees, though the website would include the names of employers and the work-related injuries or illnesses that occurred at their facilities. Certain employer data, including confidential commercial or financial information, would not be posted.
Many employers opposed OSHA’s plan to publically disclose injury data, fearing that it would bring unwarranted harm to their reputation. Unsurprisingly, two lawsuits challenging the rule were filed in federal court. However, both are still in the early stages of litigation.
OSHA reported that the delay would enable employers to “familiarize themselves with the electronic reporting system,” which OSHA now anticipates will be available on August 1st.
It is worth nothing that the proposed delay does not alter OSHA’s catastrophic reporting requirements, as employers still are required to report fatalities to OSHA within 8 hours and an in-patient hospitalization, amputation or eye loss within 24 hours.
Even though the rule appears to be in flux, employers should continue to act as though this new electronic reporting requirement will go into effect. Employers should consolidate their records and be ready to electronically submit information from their 2016 Form 300A if the electronic portal goes online on August 1st and electronic submission of data is required. Employers should wait and see if the rule is delayed until Dec. 1, 2017 (as proposed) or indefinitely (or revoked).
Thanks to Sean Klammer, Summer Associate, for his assistance with this article.