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OSHA Proposes Revision to Electronic Recordkeeping Rule

Yesterday, as expected for some time, OSHA issued a proposed rule to rescind the requirement from the May 12, 2016 “Final Rule to Improve Tracking of Workplace Injuries and Illnesses” that establishments with 250 or more employees must electronically submit information from the OSHA Form 300 – Log of Work-Related Injuries and Illnesses and Form 301 – Injury and Illness Incident Report.  These establishments will still be required to electronically submit information from their Form 300A summaries as scheduled in the original rule.  As justification for the rescission, OSHA determined that requiring the submittal of the Form 300 and 301 data increased the risk that sensitive worker information could be exposed under Freedom of Information Act requests and there were uncertain benefits to collecting this detailed information. 

OSHA also reiterated its position from an April 30, 2018 press release  that employers in all states must comply with the Form 300A requirement.  Employers’ 2017 Form 300A electronic data was due to OSHA on July 1, 2018.  Employers can still electronically submit their 2017 Form 300A data to OSHA but it will be flagged as “Late.”  OSHA noted in the proposed rule that it had identified thousands of establishments that did not submit their 2016 Form 300A data and it “is currently taking steps aimed at reducing the number of non-responders for the 2017 reporting year.”  OSHA has not issued any specific guidance discussing whether it plans to initiate enforcement actions against late reporters.  However, following the December 2017 deadline for submittal of 2016 Form 300A data, OSHA issued interim enforcement procedures stating that “failure to submit records would be classified as an Other Than Serious violation.”  Further, employees could avoid a penalty if they were able to immediately abate the violation by providing an enforcement officer with a paper copy of the Form 300A.  Thus, according to the guidance issued after the 2017 deadline, employers who immediately abate the failure to submit the Form 300A information will, at worst, receive a citation for an Other Than Serious violation. 

It is also worth noting that OSHA is proposing to add an additional requirement “for employers to submit their EIN along with their injury and illness data reporting” because it “could reduce or eliminate duplicative reporting.”   This proposal would make it easier for the Bureau of Labor Statistics to match data it collects under the Survey of Occupational Injury and Illness with data that employers submit electronically to OSHA.  The proposed rule does not address the revisions that OSHA made to 29 C.F.R. § 1904.35(b) in the May 12, 2016 final rule.  These anti-retaliation provisions impact employers’ illness and injury reporting programs, drug testing policies and incentive programs  and remain unchanged by the proposed rule. 

OSHA stated that the Form 300A information submitted by each employer gives it “a great deal of information to use in identifying high-hazard establishments for enforcement targeting” and the Form 300 and 301 information is not necessary.  OSHA has “designed a targeted enforcement mechanism for industries experiencing higher rates of injuries and illnesses based on the summary data” from Form 300A.  Although OSHA has not released details on this targeted enforcement mechanism, we expect it to resemble OSHA’s former site-specific targeting program.  Employers must therefore remain vigilant in ensuring that their facilities remain as safe and healthful as possible. 

Comments on the proposed rule are due on September 28, 2018. 

© 2020 Dinsmore & Shohl LLP. All rights reserved.National Law Review, Volume VIII, Number 212



About this Author

Daniel Flynn, Dinsmore Law Firm, Environmental and Safety and Health Attorney

Dan, a member of the Environmental Practice Group, focuses much of his practice on environmental, health and safety issues.

He has represented companies across general industry and construction with matters involving the Occupational Safety and Health Administration (OSHA), ensuring local and national clients minimize liability from OSHA enforcement actions by counseling clients on proper compliance with all OSHA standards and on proper inspection management techniques. If citations are issued, he helps clients develop and evaluate settlement...

Anna Skinner, Dinsmore Law Firm, Environmental and Litigation Attorney

Anna Claire is a member of our Litigation Department where she focuses her practice on environmental law. Her experience includes assisting clients on environmental issues in the context of business transactions and compliance counseling. Anna Claire has extensive experience with Clean Air Act enforcement and compliance issues and has helped clients against environmental enforcement initiatives directed at electric utilities. She also has experience in many aspects of discovery and trial preparation, including factual investigation, drafting motions, and witness...