OSHA Issues Proposed Rule to Amend Electronic Injury Reporting Obligations

OSHA updates

On July 30, 2018 OSHA published a new proposed rule that, when finalized, is expected to introduce significant changes to employers’ injury and illness reporting obligations originally established under OSHA’s Improve Tracking of Workplace Injuries and Illnesses final rule.

Let’s take a look at the details of the proposed rule, and the changes that may affect your business.

Original Reporting Requirements

OSHA first established the requirement for certain employers to electronically submit occupational injury and illness data when the agency published its “Improve Tracking of Workplace Injuries and Illnesses” final rule in 2016. The rule, commonly known as “the electronic reporting rule” requires certain establishments already subject to OSHA recordkeeping requirements to electronically transmit information from their injury and illness recordkeeping forms directly to OSHA via an online reporting interface called the Injury Tracking Application (ITA).

Under the original electronic reporting rule, establishments already subject to OSHA’s Recordkeeping Standard with 250 or more employees, as well as establishments with 20-249 employees operating in certain industries with historically high rates of occupational injuries and illnesses were required to submit occupational injury and illness data via the ITA. OSHA updated the rule’s reporting deadlines several times, but by late 2017 the applicability and due dates were established according to the table below:

Submission Year Establishments with 250 or more employees Certain establishments with 20-249 employees Submission deadline
2017 Form 300A Form 300A Dec 31, 2017
2018 Forms 300A, 300 and 301 Form 300A July 1, 2018
2019 Form 300A, 300 and 301 Form 300A March 2, 2019

 

Because the 300 and 301 forms contain case-specific personally identifiable information (PII), industry representatives had voiced concerns about privacy if OSHA maintained the requirement for establishments with 250 or more employees to electronically submit information from those forms. It’s fair to say that OSHA had not provided a response sufficient to ease those concerns after the final rule was published.

What’s Changing?

The first indication that OSHA would be modifying the reporting requirements came in May 2018, when the agency posted an announcement on the ITA homepage stating that they would only be collecting electronic 300A data from all affected establishments, and would not be collecting 301 and 300 form data. They also indicated they were working on a notice of proposed rulemaking (NRPM) to officially change the reporting requirements.

The new proposed rule, officially titled “Tracking of Workplace Injuries and Illnesses,” makes good on OSHA’s earlier stated intentions. The proposed rule would rescind the requirement for establishments subject to the Recordkeeping Standard with 250 or more employees to electronically submit information from their 300 and 301 forms. The rule also proposes to require covered employers to submit their Employer Identification Number (EIN) along with future electronic injury and illness summaries. All other requirements would remain the same as those previously established under the electronic reporting rule. The revised submission requirements and deadlines would now look like this:

 

Submission Year Establishments with 250 or more employees Certain establishments with 20-249 employees Submission deadline
2017 Form 300A Form 300A Dec 31, 2017
2018 Form 300A Form 300A July 1, 2018
2019 Form 300A Form 300A March 2, 2019

 

Beginning in 2019, the submission deadline will now be March 2 for the data from the previous calendar year. This annual deadline is just a little over one month after the physical 300A form needs to be completed, printed, signed and posted in an accessible location at affected establishments.

By limiting data submissions to 300A data, which contains only summary-level information about occupational illnesses and injuries rather than cases-specific information, OSHA seeks to alleviate the privacy concerns that were voiced immediately after publication of the original electronic reporting rule. In the summary to the new proposed rule, the agency states that they have “preliminarily determined that the risk of disclosure of this information, the costs to OSHA of collecting and using the information, and the reporting burden on employers are unjustified given the uncertain benefits of collecting the information. OSHA believes that this proposal maintains safety and health protections for workers while also reducing the burden to employers of complying with the current rule.”

What Happens Now?

As with any proposed rulemaking, OSHA is required to solicit public comments. OSHA is particularly interested in what the perceived effects of the proposed rule will be on the protection of employee privacy. Those who wish to submit comments must do so prior to the closing date of September 28, 2018. OSHA will consider comments received as it begins the process of drafting and publishing a final rule.

What Does This Mean for Me?

Well, let’s start with the obvious. If you have an establishment that is subject to OSHA electronic reporting requirements, you may now have less work to do because those establishments with 250 or more employees would not have to submit information from Forms 300 and 301. This news will likely be well-received within industry.

But what’s different due to the new proposed rule is really only part of the story. It’s equally important to focus our attention on what remains the same. With that in mind, we offer you a few take-aways below.

Understanding applicability. Even though OSHA’s proposed rule would eliminate the requirement to submit 300 and 301 data for larger establishments, the requirement for all affected establishments to electronically submit 300A data remains in place – and there’s evidence that many employers have struggled with this requirement so far. As mentioned in a previous EHS Blog post, OSHA expected to receive approximately 350,000 reports by the first submission deadline of December 31, 2017, but only received 153,653 reports. That translates to nearly 200,000 establishments which failed to report.

The second reporting deadline of July 1, 2018 for calendar year 2017 data has recently passed, and only time will tell how many establishments may have missed the reporting deadline in this cycle. In an announcement on its Injury Reporting page, OSHA has confirmed that the July 1, 2018 submission deadline will be enforced, saying that employers may continue to submit their 2017 data, but that submissions received after July 1, 2018 will be flagged as “late.” The bottom line is that employers shouldn’t let proposed or anticipated changes to recordkeeping and submission requirements distract you from your existing obligations.

 Review Drug Testing Policies. The 2016 OSHA electronic reporting rule incorporated the existing statutory prohibition on retaliating against employees for reporting occupational illnesses and injuries. As a result, OSHA may cite an employer for retaliation if the agency believes the employer is deterring or discouraging injury and illness reporting through threat of retaliation, even if no employee has filed a formal complaint. OSHA has stated that “blanket” drug testing policies that send all employees who report injuries out for drug testing could potentially be an example of retaliation. The exception would be if an employer performs drug testing to comply with other applicable requirements such as state workers’ compensation laws. In that instance, the purpose of the drug testing policy would clearly not be retaliatory. It’s a good idea to carefully review company policies to determine the reasons and purposes for holding them, and to be ready to explain them to OSHA in the event of an inspection.

 Incentive Programs. OSHA broadly disapproves of safety incentive programs that discourage or deter employees from reporting workplace injuries and illnesses. Though many employers have nothing but good intentions when establishing their workplace safety incentive programs, OSHA views some types of incentive programs as effectively discouraging injury and illness reporting. These would include the traditional “pizza lunch” in which employees are rewarded for having zero reported workplace injuries with a pizza celebration or some other kind of free dining or leisure activity. Employees want the reward and realize that reporting an injury will prevent them from getting it, and so an employer with this kind of incentive system has unwittingly discouraged reporting.

Rather than relying on the occurrence and reporting of workplace injuries, an acceptable program relies on proactive safety metrics such as employee participation in workplace safety activities, reporting suggestions for improvement, or for number of years of service on the safety committee.

 Reporting System. OSHA stated within the 2016 final rule that “an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting.” This really just means that if your system for reporting workplace injuries and illnesses is too convoluted or difficult, it is likely to discourage reporting. A reporting system that is simple and easy-to-use will improve overall incident management, reduce the time it takes to implement corrective actions, and have the added advantage of ensuring compliance with OSHA requirements. For maximum benefit, consider a reporting system that also improves reporting and investigation of chemical spill incidents, with the ability to search for safety data sheets (SDSs) of chemicals and include product information or the SDS document itself in the incident report.

To recap, be sure to avoid letting the proposed reduction in reporting obligations lull you into a false sense of security. Employers have struggled with many aspects of incident reporting and electronic reporting, and will need to be vigilant in order to ensure compliance with regulatory requirements.

Let VelocityEHS Help

While OSHA does not specifically require employers to adopt an electronic system to record and report occupational injuries and illnesses, EHS management software with the ability to export injury and illness data to a standard .CSV file format that meets OSHA’s submission requirements can significantly streamline the electronic submission process. The VelocityEHS Incident Management solution makes it easy for employers and employees to more accurately record workplace incidents, near-misses and hazards of all types, then automatically generate completed OSHA forms 300, 300A, and 301. Our solution even allows users to generate properly formatted injury and illness summary reports for instant electronic submission to the ITA.

In addition, the easy-to-use VelocityEHS Mobile App allows workers to instantly report incidents, near misses and hazards as they occur – with or without internet connectivity – via their smartphone or tablet device. With the ability to record workplace injuries and illnesses in the palm of your hand, employers can all but eliminate barriers to incident reporting while providing more accurate information that can then be quickly and easily submitted to OSHA’s ITA.

If you have our MSDSonline HQ Account, you’ll also improve your reporting of chemical release incidents by easily searching for the relevant SDS so you can quickly include product information in your incident report, or even directly attach an electronic copy of the SDS. This saves time when you most need to, and helps protect the safety and health of your workforce.

Do you need help ensuring your workplace programs policies don’t discourage injury and illness reporting? Our Audit & Inspection solution allows you to review your programs and make sure they meet OSHA requirements, with the ability to quickly assign, track and verify completion of identified corrective actions.

With VelocityEHS, you can take the anxiety out of compliance with OSHA’s electronic reporting rule and have the tools you need to take EHS management to new heights.