The Occupational Safety and Health Administration (OSHA), which had issued a rule requiring the electronic posting of OSHA 300 Injury and Illness Summaries for most employers in May 2016, announced that the filing deadline will be postponed for an undetermined period of time. OSHA has announced that it “intends to propose extending the July 1, 2017 deadline” for the first phase of its rule requiring the electronic submission of injury and illness records. The July deadline was for employers in certain categories to electronically submit their OSHA 300A annual summaries. OSHA had previously set a deadline of July 1, 2017, for employers to file their injury and illness forms online. With the filing deadline only a month and a half away, OSHA has now delayed the filing. A new deadline has not been announced and OSHA has not offered a formal reason for the postponement.

The Recordkeeping Rule, which covered nearly 441,000 workplaces, took effect January 1, 2017 and employers were obligated to send in their summary data for 2016 by July 1, 2017. But OSHA has yet to launch the website for companies to submit the information, and it posted language Wednesday (May 17th) with an existing fact sheet saying it “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” to the agency.

Many had expected the Trump administration to delay implementation, or Congress to deny funding to the program, so this news does not necessarily come as a surprise.  What is unknown at this point is the exact rationale for the delay and when a new deadline will be set (if at all).  No further information has been forthcoming about the rule or the delay, however, presumably because Congress has only recently approved a Secretary of Labor, Alexander Acosta, and as of May 22, we still do not have a new Director of OSHA or deputies in place.

It would not be surprising to see unions or other worker advocacy groups bring legal challenges to force OSHA to meet the July 2017 implementation date.  A collection of groups had already been waging a media campaign supporting the new rule.  In fact, the former Assistant Secretary of Labor for OSHA under President Obama complained that the decision to delay the rule was made for political purposes and was not technical in nature.  “Sixteen years’ worth of that data is on the Web right now, but no one complains about it,” said David Michaels, who headed OSHA from 2009 to 2017 and is a professor at George Washington University’s Department of Environmental and Occupational Health. “We know by making injury rates public some employers will work to prevent injuries because they want to be seen as safe employers and they want be seen as good employers.”

It is important to remember that the electronic recordkeeping rule would not have created new obligations in terms of reporting. Those employers covered by the new rule would have been required to use data from their OSHA Forms 300, 300A, and 301 to report electronically. One big change was OSHA’s plan to electronically post injury and illness data on its website from all workplaces with 20 or more employees and for certain high-risk industries, making the information publicly available for the first time ever for consumption by unions, plaintiffs’ attorneys, and others. Submission was to be phased in based on employer establishment size and industry.

The Obama administration interpreted the regulation’s new anti-retaliation provisions in a manner that has produced significant effects on automatic post-accident drug testing, safety incentive plans, and injury reporting procedures, there is still no definitive word yet on whether OSHA’s interpretations will also change.

Several employer groups had been requesting that the Trump administration reopen the recordkeeping rule making process to consider changes to the rules, and such an option could possibly be on the table.  Affected industries will be in a better position to understand the future of the rule once Labor Secretary Alexander Acosta settles into his new role, and once there is a new OSHA Director in place.

In an email sent today to stakeholders, OSHA announced that it intends to delay the July 1, 2017 compliance date for the electronic submission of the 2016 Form 300A.  As part of the final rule, Improve Tracking of Workplace Injuries and Illnesses issued in May 2016, employers  had a phased in compliance deadline for the electronic submission of recordkeeping forms.  For 2017, employers with establishments with 250 or more employees and establishments with less than 250 employees but 20 or more in certain high-risk industries were required to electronically submit their 2016 Form 300A by July 1, 2017.  However, the secure website that OSHA intended to use for the submission of these recordkeeping forms has not been made available.

In the email, OSHA stated,

“OSHA intends to extend the initial date by which certain employers are required to electronically submit their injury and illness logs.  The Recordkeeping Rule currently requires certain employers to submit the information from their completed 2016 Form 300A to OSHA electronically by July 1, 2017.  The proposal will extend this to a later date.  Currently, we do not have any additional information about the timeline for this.  We will let you know as additional information, including a proposed extension date, is available.”

Article brought to you by:
Dudley F. Woody
Principal, Woods Rogers PLC
Labor and Employment Practice Group

Stephen A. Burt
President
Healthcare Compliance Resources
A Woods Rogers PLC Affiliate