July 23, 2018

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OSHA Anticipates More Changes to the Electronic Record-keeping Rule: What Does It Mean for Employers?

The Trump administration continues to look for ways to lessen the regulatory burden on employers. As a result, the Occupational Safety and Health Administration’s (OSHA) electronic recordkeeping regulation continues to be whittled down. OSHA’s latest Regulatory Agenda sets out new changes to the already beleaguered rule. Specifically, OSHA intends to propose to amend the Electronic Recordkeeping rule to eliminate the requirement that establishments with 250 or more employees submit OSHA 300 Logs and 301 forms. Instead, two types of establishments would continue to submit 300A summary forms: (1) establishments of 250 or more employees; and (2) establishments with between 20 and 249 employees in the high-hazard industries listed in Appendix A to the regulation. Employers with establishments meeting these criteria electronically submitted OSHA 300A summaries with 2016 data on or before December 31, 2017, and will submit their calendar year 2017 summaries by July 1, 2018. Beginning in 2019, and every year thereafter, covered establishments must submit the information by March 2.

The Proposal

OSHA enacted the original amendments to the recordkeeping regulation in May of 2016. At the time, OSHA said that OSHA 300 Logs and 301 forms would be published on OSHA’s website, with employee names and other personal information redacted. OSHA’s plan to publish the information was consistent with one of the main goals of then-Assistant Secretary of Labor for Occupational Safety and Health David Michaels: regulate by “shaming” the employer community, which included shining a light on all injuries that occurred at a facility regardless of circumstances. The employer community objected vehemently for two reasons: (1) an OSHA 300 Log does not always reflect the efficacy of an employer’s safety program and (2) publication of the data was really intended as a gift to union organizers and the plaintiffs’ bar.

The latest Regulatory Agenda states:

The preamble to the May 2016 final rule pointed to publication of the collected data as a method to improve workplace safety and health through the rule’s requirements. OSHA stated its intention not to publish personally identifiable information (PII) included on Forms 300 and 301; OSHA Form 300A does not contain any PII. OSHA has now determined that it cannot guarantee the non-release of personally identifiable information. If OSHA were unable to publish the collected work injury and illness data because it cannot guarantee the non-release of personally identifiable information, then the potential benefit of improved worker safety and health through publication of the collected data would not be realized.

As a result, OSHA will propose eliminating the requirement to submit OSHA 300 Logs and 301 forms. OSHA published its Regulatory Agenda in the fall of 2017, and stated that a Notice of Proposed Rulemaking would be forthcoming in December of 2017. That date has now come and gone, which is the norm when it comes to OSHA’s projections on publication dates. OSHA is not accepting electronic OSHA 300 Logs or 301 Forms in anticipation of the new rule.

OSHA also proposes requiring employers to include the Employer Identification Number on each 300A form submitted. This would allow the Bureau of Labor Statistics (BLS) to use the data and “potentially reduce the burden on employers who are required to report injury and illness data to both OSHA” and BLS. This change would undoubtedly be celebrated by corporate safety managers from coast to coast.

The Practical Effect: Employers May Be Able to Breathe Easier

If OSHA never collects the OSHA 300 Log and 301 Forms, essentially all of the concerns raised by the employer community melt away. Plaintiffs’ attorneys and union organizers will not have access to the data. Much more importantly, OSHA will not have access to the data. Although it was not discussed as often during the debate over the revised regulation, giving OSHA access to all of this data gave employers (and management attorneys) a fair amount of heartburn. Currently, OSHA collects paper copies of 300 Logs and 301 Forms during inspections of individual establishments. Those are put into the inspection file, and—most often—stay there. An employer might be cited for not maintaining logs, but OSHA’s ability to cite an employer for recording incorrectly is curtailed by the D.C. Circuit Court of Appeals’ decision in Volks. The key point: OSHA currently has no ability to obtain a snapshot of a company’s overall injury and illness data because it is all on paper and limited to individual establishments that are inspected.

The electronic submission requirements changed all of that. For the first time, an OSHA compliance officer in Texas, for example, could have clicked a few buttons and seen that an employer’s establishment in Maine had experienced forklift accidents, amputations, or an outbreak of tuberculosis. OSHA 300A data does not have this detail, and instead shows only the number of reportable injuries and illnesses. In contrast, the OSHA 300 Log and 301 Forms could have—and likely would have—been used to as an enforcement tool. The compliance officer in Texas could focus her inspection on forklifts, machine guarding/lockout-tagout, or infectious disease control based on the data from Maine, and her question would be: Why didn’t the Texas facility make changes to address the hazards identified in Maine? An inadequate response might very well have resulted in a “willful” violation. Combined with information OSHA has from the reporting of fatalities, a compliance officer could have entered an inspection armed with a data juggernaut.

By not collecting the data at all, OSHA loses this opportunity. OSHA could have chosen to collect the data, but not publicize it. OSHA’s decision to abandon the effort altogether is the surest sign yet that the Trump administration may be backing off the “tough new sheriff in town” enforcement that had become somewhat routine during the Obama administration.

© 2018, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

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About this Author

Melissa Bailey, Ogletree Deakins Law Firm, Occupational Safety Litigation Attorney
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Melissa Bailey focuses her practice on occupational safety and health issues, and also serves on the Firm's Board of Directors. She litigates OSHA cases before federal and state agencies and courts, and also represents employers during government inspections and investigations. Her practice also includes providing compliance advice and conducting privileged audits on complex workplace safety issues. Melissa represents employers in a wide range of industries, including electric utilities, chemical manufacturing/refining, retail, food processing, construction, and drug...

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Aaron Wilensky focuses his practice on workplace safety and health issues, representing employers facing state and federal OSH investigations.  Aaron also has extensive litigation experience before the United States Department of Labor Administrative Law Judges, representing employers on a wide array of matters before the agency.

Prior to joining the firm, Aaron practiced with a small firm in Newport News, Virginia, representing large industrial employers, including Fortune 500 companies, ports, defense contractors and Non-Appropriated Fund Instrumentalities.  Aaron gained significant client interaction and litigation experience. 

While in law school, Aaron was a law clerk for the United States Capitol Police, a six month long, full-time academic opportunity that gave him experience representing an employer in labor disputes, workplace safety issues, and disciplinary matters, as well as exposing him to all the aspects of a Federal General Counsel’s office.  In addition to his academic work in law school, Aaron worked for the United States Department of Labor, Office of Administrative Law Judges and worked off-site for a small law firm in New Jersey, where he assisted in litigation matters as a law clerk.

Aaron focuses on tough, complex issues and connects with clients directly, always striving to provide value added and reducing or eliminating potential liability. 

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